Sylvester Kelly v. State

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana

No. 06-12-00141-CR

SYLVESTER KELLY, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 188th District Court
Gregg County, Texas
Trial Court No. 41,078-A

Before Morriss, C.J., Moseley and Burgess, JJ.
Opinion by Justice Moseley
 OPINION
Sylvester Kelly, after being found guilty of aggravated robbery and after the presentation

of enhancement evidence, was sentenced to fifty years’ incarceration. Kelly filed an appeal, and

his appointed appellate attorney filed a brief and motion to withdraw in compliance with Anders

v. California, 386 U.S. 738, 743–44 (1967).1 As required by Anders, the appellate attorney advised

Kelly that he had a right to raise his own points of appeal should he determine that some existed.

However, the attorney advised our Court that he had made a review of the record at the Gregg

County Clerk’s Office and that he did not have a copy to provide to Kelly for his perusal. Kelly

requested this Court to supply a copy of the record to him, but having only our (rather voluminous)

one, we denied the request. After the appropriate time, we reviewed the record, found no

meritorious grounds for relief, affirmed the conviction, and allowed counsel to withdraw. The

Texas Court of Criminal Appeals reversed our opinion (finding we erred in failing to supply Kelly

with a copy of the record after Kelly had requested us to do so) and remanded the case to us with

specific instructions regarding the course of action to take when confronted with Anders briefs.2

Our Court has now duplicated its own copy of the record of Kelly’s trial and provided it to him.

Kelly has filed a pro se brief. After reviewing Kelly’s arguments and the applicable law, we affirm

the trial court’s judgment and conviction.

1
See also Stafford v. State, 813 S.W.2d 503, 509–10 (Tex. Crim. App. 1991); High v. State, 573 S.W.2d 807, 812–13
(Tex. Crim. App. [Panel Op.] 1978).
2
Kelly v. State, 436 S.W.3d 313 (Tex. Crim. App. 2014).

2
I. Facts

In the early morning hours of October 30, 2011, as two men sat in an automobile outside

The Main Event (a Longview nightclub), a man approached the car and tapped on the window.

The man then shot out the window of the car with a gun, reached into the car, and took the wallet

of one of the car’s occupants. Kelly was identified as the perpetrator of this act and was convicted

at trial of aggravated robbery. On appeal, Kelly raises several points. He (1) challenges the

sufficiency of the evidence, (2) claims that both his trial counsel and appellate counsel failed to

provide effective assistance, (3) asserts that the State offered perjured testimony, used an

impermissibly suggestive identification procedure, and conducted an improper investigation, and

(4) alleges that the State committed prosecutorial misconduct during closing arguments.

II. Sufficiency of the Evidence

In evaluating legal sufficiency of the evidence, we review all the evidence in the light most

favorable to the trial court’s judgment to determine whether any rational jury could have found the

essential elements of the offense beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893,

912 (Tex. Crim. App. 2010) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)); Hartsfield v.

State, 305 S.W.3d 859, 863 (Tex. App.—Texarkana 2010, pet. ref’d). We examine legal

sufficiency under the direction of Brooks, while giving deference to the responsibility of the jury

“to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences

from basic facts to ultimate facts.” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007)

(citing Jackson, 443 U.S. at 318–19).

3
 Sufficiency of the evidence is measured by the elements of the offense as defined by a

hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997).

The hypothetically correct jury charge “sets out the law, is authorized by the indictment, does not

unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s theories of

liability, and adequately describes the particular offense for which the defendant was tried.” Id.

Under the hypothetically correct jury charge, the State was required to prove that Kelly,

while in the course of committing theft of property and with intent to obtain or maintain control of

that property, did intentionally or knowingly threaten or place Michael Boyd in fear of imminent

bodily injury or death while using or exhibiting a deadly weapon. See TEX. PENAL CODE ANN.

§ 29.03 (West 2011).

Kelly’s attack upon the sufficiency of the evidence is grounded in the testimony of the

robbery victim, Boyd (who failed to conclusively identify Kelly as the robber). However, there

was other circumstantial evidence strongly pointing to Kelly as the culprit.

Boyd and a friend, Audrey Morrow, Jr., were sitting in a car about 3:00 a.m. October 30,

2011, in the parking lot of The Main Event. According to their testimony, the two men were sitting

in the car as they drank, smoked marihuana, and listened to music as they debated about whether

to go into the club. Boyd observed a person wearing a yellow hoodie sweatshirt come across the

street and go to a truck belonging to someone he knew. Although Boyd thought this a bit “strange,”

his attention was diverted by the conversation with Morrow. Boyd said that the hoodie-clad person

then tapped on Boyd’s car window with a pistol. Boyd described what happened next: “I looked

at him, I kind of gave him like a go-on motion, and he fired the pistol.” Boyd said he “jumped
4
like between the seats and [] lay still thinking maybe if he thought I was dead he wouldn’t shoot

anymore.” The assailant reached into the car and took Boyd’s wallet, which Boyd said contained

$490.00.3 Morrow’s version of the event was quite similar; he said that someone came to the car

window and gave an “unusual knock” which he thought might have been with a gun, then shot out

the window. Morrow (who was “wanted” by the police and did not want to be around when the

police arrived) got out of the car and walked away.

After a “couple seconds,” Boyd said he “jumped out of the car” and saw his assailant cross

the street “and get into a brown sedan” or what he also described as a “brown Lincoln four door.”

Morrow’s version contrasted only a bit because he described the car the assailant entered as being

a dark yellow car. Boyd saw no one else enter the car. Police were already responding to an

unrelated report of a person with a gun at The Main Event,4 so Boyd saw police approaching even

as he watched his robber cross the street and get in the car. Boyd told the arriving police he had

been robbed; he stated, “It couldn’t have been a whole minute” between his having watched the

robber in the yellow hoodie cross the street to the brown Lincoln and his alerting the police. When

asked by the State if “it was pretty immediately afterwards” that Boyd saw the suspect leave the

scene and Boyd talked to the police, Boyd said, “It was enough [time] to probably walk from here

to the back of the court.”

3
Boyd particularly remembered this specific amount because he was carrying that very sum which he intended to use
the next day to pay a bill or bills owed by his mother.
4
Longview Police Officer Steven Bryand said that according to the results of his investigation, there was no link
between the report prompting police presence and the Boyd robbery.
5
 Bryand testified that he was dispatched to a report of a person with a gun inside the

nightclub. As soon as he parked his car, a black male (whom Bryand identified as Boyd) came to

Bryand to inform him of the robbery. Bryand related that Boyd pointed out the car which he said

he had watched the robber enter and told Bryand that the robber was still in the car so Bryand sent

another officer, Ryan Gibson, to investigate. Gibson said he found Kelly in the back passenger

seat of a tan, four-door, Lincoln Town Car. Gibson identified himself and told Kelly to show his

hands and exit the vehicle. Instead, Kelly “reached down towards the . . . front passenger seat as

if he was reaching for something or stuffing something.” Kelly then exited the vehicle. Under the

front passenger seat (in the same area where he had observed Kelly lean), Gibson found a .40

caliber Glock pistol. On the passenger seat next to Kelly was a yellow hoodie sweatshirt. The

State showed that a shell casing located on the ground beside Boyd’s automobile had been fired

from the same pistol found in the car where Gibson found Kelly.

Neither Boyd nor Morrow could identify Kelly as the man who shot the window and robbed

Boyd. Boyd said he could not see the person’s face because of the hoodie, but as he saw the robber

walk away, he noted a memorable characteristic: “the way he walk[ed].” The walk reminded him

of Sylvester Gray, a person with whom Boyd had gone to elementary school. At trial, Boyd

identified Kelly as the person he had known as Sylvester Gray. Officer Gibson also said that when

he first contacted Kelly, he identified himself as Sylvester Gray. The indictment named the

defendant as Sylvester Gray, but there is an interlineation changing the surname to Kelly and a

note reading “changed at suggestion of defendant that Kelly is his correct name” that was signed

6
and dated by the trial court.5 Gibson testified he had been able to identify the defendant as using

both the Sylvester Gray and Sylvester Kelly names.

Gibson said he questioned Kelly, and the trial court admitted a recording of that

conversation. Kelly told Gibson he had been dropped off at the night club by a woman who went

to get a motel room and indicated that the woman was supposed to return to pick him up. He said

the lady’s name was Sidney, but did not know the lady’s last name or her telephone number. He

said he got into the car because he was cold, and he denied having a gun. He told Gibson the

$490.00 in his pocket had been earned at his job.

Summarizing the evidence, we find at least these things that implicate Kelly as the person

who robbed Boyd: (1) very little time passed from Boyd watching the robber cross the street to

enter a car and the police finding Kelly in the car; (2) the pistol, which ejected a shell located near

Boyd’s car, was found in the same vehicle in which Kelly was located; (3) a yellow hoodie jacket

(like that worn by the assailant) was also found in the car with Kelly; (4) Boyd’s wallet, absent

any cash, was located by the police less than twenty feet from the car in which Kelly was found;

and (5) Kelly had $490.00 in his pocket, the same amount of money Boyd said was taken from

him. Although neither Boyd nor Morrow were able to identify Kelly’s face as belonging to the

assailant, Boyd was able to liken the walk of his assailant to that of a former school acquaintance

whom he knew by a different name, but it developed that Kelly had previously used that same

5
Kelly also acknowledged Kelly to be his correct surname at trial and when waiving arraignment.
7
name. Plainly, there was sufficient evidence upon which a rational jury could have found, beyond

a reasonable doubt, that Kelly committed the aggravated robbery with which he was charged.

We overrule Kelly’s first point of error.

III. Ineffective Assistance of Counsel

Kelly claims that his counsel failed to provide constitutionally effective assistance of

counsel.6 To prevail on a claim of ineffective assistance of counsel, a defendant must show that

(1) counsel’s performance was deficient, and (2) the defendant was prejudiced thereby. Strickland

v. Washington, 466 U.S. 668, 687 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App.

1999). Ineffective assistance of counsel claims must be firmly rooted in the record, with the record

itself affirmatively demonstrating the alleged ineffectiveness. Lopez v. State, 343 S.W.3d 137,

142–43 (Tex. Crim. App. 2011). Failure to satisfy either prong of the Strickland test is fatal.

Ex parte Martinez, 195 S.W.3d 713, 730 n.14 (Tex. Crim. App. 2006). Thus, we need not examine

both Strickland prongs if one cannot be met. Strickland, 466 U.S. at 697.

We indulge a strong presumption that counsel’s conduct falls within the wide range of

reasonable, professional assistance and that it was motivated by sound trial strategy. See Jackson

v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). “If counsel’s reasons for his conduct do

not appear in the record and there is at least the possibility that the conduct could have been

legitimate trial strategy, we will defer to counsel’s decisions and deny relief on an ineffective

assistance claim on direct appeal.” Ortiz v. State, 93 S.W.3d 79, 88–89 (Tex. Crim. App. 2002).

6
See U.S. CONST. amend. VI.
8
Rarely will a reviewing court be provided the opportunity to make its determination on direct

appeal with a record capable of providing an evaluation of the merits of ineffective assistance

claims. Thompson, 9 S.W.3d at 813. “In the majority of instances, the record on direct appeal is

simply undeveloped and cannot adequately reflect” the reasoning of trial counsel. Id. at 813–14.

Only in the rare case “in which trial counsel’s ineffectiveness is apparent from the record” may

the appellate court “address and dispose of the claim on direct appeal.” Lopez, 343 S.W.3d at 143.

Kelly raises several allegations which he claims demonstrate trial counsel’s

ineffectiveness. He avers that trial counsel failed (1) to locate witnesses to offer exculpatory

evidence, (2) to challenge the chain of custody of the cash found in Kelly’s pocket, and (3) to file

certain motions (including a request to declare a mistrial and a request for a limiting instruction as

to one witness’ testimony). Kelly’s claim that appellate counsel was ineffective is limited to his

claim that appellate counsel should have made a claim that trial counsel provided ineffective

assistance. Although as couched, Kelly’s claim obviously presents a multifarious argument, we

nevertheless address those claims in the interest of justice. See TEX. R. APP. P. 38.1; Davis v. State,

329 S.W.3d 798, 803 (Tex. Crim. App. 2010).

Kelly first argues trial counsel’s ineffectiveness was shown by his failure to “find and

interview any potential witnesses to ascertain whether their testimony would have aided

Appellant[’]s alibi or innocence defense.” Kelly claims that “the driver and passenger of the car

the appellant was arrested in were extremely relevant witnesses[] [a]nd their attendance at trial

was very important.” But Kelly neither identifies these witnesses (if, indeed, they exist), nor even

postulates speculation about what testimony they could have provided, nor relates how any such
9
testimony would have assisted in his defense. Where a defendant cannot establish these matters,

he fails to demonstrate harm as required by Strickland. See Ex parte McFarland, 163 S.W.3d 743,

757–58 (Tex. Crim. App. 2005) (“Applicant has failed to name any specific witnesses . . . whom

his attorneys should have contacted or called as mitigation witnesses. Likewise, he has failed to

show that these unnamed witnesses were available to testify or that their testimony would have

benefitted him. Therefore, he fails to show prejudice.”).

Kelly next alleges that trial counsel was ineffective because counsel was “unaware of the

chain of custody involving the currency that was admitted . . . [,]” i.e., the $490.00 that was found

in Kelly’s pocket, which the State suggested was the same $490.00 taken from Boyd’s wallet.

According to Kelly, this demonstrates counsel’s “failure to conduct any pretrial discovery.” First,

if there is a missing link in a chain of custody, the break in that chain affects the weight given to

the evidence, rather than affecting its admissibility. See Stoker v. State, 788 S.W.2d 1, 10 (Tex.

Crim. App. 1989). Second, the currency found on Kelly was only a part of the circumstantial case

built against him.7 Finally, there is nothing to support Kelly’s broad, conclusory allegation that

trial counsel failed to conduct pretrial discovery. Absent contrary evidence, we presume counsel

provided sound, reasonable representation. Also, there is nothing presented by Kelly to say why

this currency would not have been admissible. We find no evidence of ineffective representation

under this line of attack.

7
The cash and wallet were returned to Boyd at the scene. Photographs of the wallet and identification card were
admitted into evidence without objection.
10
 Next, Kelly argues that trial counsel should have moved for a mistrial, but it is not clear

upon what ground Kelly feels a mistrial was warranted. After his argument about the chain of

custody for the $490.00, Kelly makes the following statement in his brief:

Due to the turning over [of] the confiscated currency to the alleged victim at the
scene of the offense, without any proof of ownership [sic] . . . , and also failed to
prevent the testimony of the alleged eyewitness from being admitted. [Trial
counsel] failed to request and [sic] instruction to disregard[,] and he failed to
request a mistrial. If trial counsel would have filed a motion in limine[,] alleged
eyewitness testimony w[h]ich gave [the] jury [a] false impression would not have
been admitted into evidence. Had trial counsel been functioning effectively, this
testimony would not have been admissiable [sic] due to no evidence admitted at
appellant’s trial or in the record gives proof to Aubrey Marrow [sic] being a[n]
actual eyewitness to the offense Appellant was charged with.

Kelly also claims trial counsel should have requested a limiting instruction as to Morrow’s

testimony. Kelly cites no authority on this point and provides no explanation as to why a motion

for mistrial or limine or a limiting instruction should have been requested as to the currency or to

Morrow’s testimony. This argument is inadequately briefed, and we decline to address it. See

TEX. R. APP. P. 38.1(i); see also Bell v. State, 90 S.W.3d 301, 305 (Tex. Crim. App. 2002)

(appellate court will not make legal arguments for appellant, where no specific legal arguments

and authority are presented).

Kelly claims his trial counsel failed to investigate or challenge Kelly’s prior convictions,

which were admitted at punishment, and claims these convictions were void because they were

obtained while he was without the benefit of counsel. The State admitted seven prior convictions:

five Texas misdemeanors, one Texas second degree felony, and one federal felony. Four of the

misdemeanor judgments state that Kelly intelligently, knowingly, and voluntarily waived his right

11
to counsel, after being warned of the hazards of self-representation. The judgments reflecting the

other misdemeanor and the Texas felony convictions state that Kelly was, indeed, represented by

counsel. Although the judgment reflecting the federal conviction does not expressly state that

Kelly was represented by counsel, it does recite that Kelly was found guilty on one count after a

plea of not guilty. While there is no conclusive indication that Kelly was represented by counsel

in the federal matter, neither is there any waiver of counsel. An indigent defendant has a right to

appointed counsel in a federal criminal proceeding, unless the defendant waives that right. See

FED. R. CRIM. P. 44. Absent some evidence to the contrary, we presume that trial counsel

investigated the State’s evidence of prior convictions and made competent decisions on whether

to challenge that evidence.

In the last of his list of complaints about his representation, Kelly claims that his appellate

attorney was ineffective for failing to raise a point of error alleging trial counsel’s ineffectiveness.

Because we have found nothing in Kelly’s various claims to rebut the presumption that trial

counsel operated competently with a sound trial strategy, we cannot find that appellate counsel

should have raised this point of error on appeal. Kelly has failed to meet the requirements of

Strickland on his various complaints about the legal representation he received.

We overrule his second point of error.8

8
From our review of the record, we can discern a defensive strategy of suggesting that someone else robbed Boyd.
Trial counsel stressed, in cross-examination, the criminal histories of Boyd and Morrow. He had Boyd recalled to the
stand where Boyd acknowledged having originally given an inaccurate representation of the circumstances
surrounding one of his prior convictions. In closing argument, Kelly vigorously attacked the credibility of Morrow
and Boyd. Counsel pointed out that one of the testifying police officers made a mistake as to the color or style of
Kelly’s shirt when the officer made an in-court identification: Gibson initially pointed out Kelly, in court, as wearing
a “light blue t-shirt”; when asked to clarify, he said Kelly was in a “striped blue shirt, button-up shirt.” He pointed
12
IV. There is No Evidence that the State Presented Perjured Testimony

Kelly also claims that his appellate counsel erred to file an Anders brief where the record

“clearly shows the State[’s] use of perjured or falsified evidence.” Kelly argues that Morrow (the

man who was sitting in the car with Boyd when the window was shot out and Boyd was robbed)

committed perjury when Morrow claimed to be an eyewitness to the robbery. However, Morrow

did not claim to have been an eyewitness to the robbery; rather, he clearly only testified to what

he actually observed and did not purport to say that he saw Kelly fire the gun or take Boyd’s wallet.

Kelly offers no distinction between what he believes is meant by eyewitness versus witness.9

As summarized above, Morrow said he was in the car with Boyd, outside The Main Event

nightclub. Morrow acknowledged drinking beer and smoking marihuana at the moment of or

shortly before the robbery. He acknowledged being “wanted” for a community supervision

violation at the time. Thus, even though a police officer said he wanted to talk to Morrow, Morrow

left the scene. More importantly to Kelly’s appellate argument, Morrow never claimed to have

seen the face of the robber or to be able to identify him. Morrow only said that someone shot out

the window of the car; he thought Boyd said his wallet had been taken; Morrow fled the car and

eventually the scene; and he saw someone—Morrow did not say this someone was the robber—

out repeatedly that officers were called to investigate a report of a person with a gun at The Main Event and that Kelly
had no keys to the car in which he was found. He got one police officer to say that a man came from the night club,
and asked what police were doing around the Lincoln in which Kelly was found. The officer suggested that the man
may have claimed ownership of the car; but police did not take the name of this person.
9
“Eyewitness” is defined as “one who sees an occurrence or an object; esp: one who gives a report on what he or she
has seen.” MERRIAM-WEBSTER'S COLLEGIATE DICTIONARY 446 (11th ed. 2006). “Witness” is defined, in relevant
part, as “one that gives evidence; specif: one who testifies in a cause or before a judicial tribunal” or “one who has
personal knowledge of something.” Id. at 1439.
13
walk across the street and get in the passenger side of a dark yellow car. Morrow expressly said

he did not see the shooter’s face and did not remember what he was wearing. There is nothing in

the record to suggest that Morrow committed perjury. He was a fact witness, and the jury was free

to believe or disbelieve any or all of his testimony.

Kelly claims his trial attorney erred “in not taking notice of the fact that there was no

mention in Officer Bryand, Steven or Officer Gibson, Ryan offense report pertaining to their

observation of the scene or the victim statement, of any person being a passenger or was an

eyewitness to the committed act.” The offense reports are not in the record, so we have no way of

knowing if Kelly is correct about their contents. Trial counsel did cross-examine Gibson about his

report having no indication that Kelly was found with keys to the car in which he was sitting. We

find no error in admission of Morrow’s testimony or in appellate counsel’s decision not to raise

some point of error regarding Morrow’s testimony.

V. Boyd’s Identification

In his fourth point of error, Kelly claims that he was “subjected to unduly suggestive

pretrial identification procedures.” Kelly asserts that Boyd “stated that he was told by the police

who he should identify,” citing to the fourth volume of the reporter’s record, page 106, lines 17

through 24. To provide context, we quote this passage as well as some of the questions and

answers before and after Kelly’s citation, which appears in italics:

Q. [By Defense Attorney] And then you thought from the way he
walked it was Sylvester Gray, but you didn’t tell the police that that night, did you?

A. [By Boyd] I couldn’t positively ID him, no.

14
 Q. You didn’t tell the police that. You didn’t --

[The State objects]

Q[.] [By Defense Attorney] In fact, you never said anything to anybody
about you thinking it was Sylvester Gray until you found out that’s who they
charged with this crime; isn’t that true?

A. [By Boyd] No, they were saying his name that night.

Q. They were saying his name that night and you didn’t tell the police?

A. That’s who was saying his name.

Q. And you didn’t tell the police, “Yeah, that’s who it was.” You didn’t
tell them that, did you?

A. I didn’t want to make a false statement, so, no, I didn’t tell them that.

Q. Oh, thank you. You didn’t want to make a false statement.

A. Yeah, I didn’t see his face. Why would I tell them I seen his face
when I didn’t?

Q. Okay. So you didn’t want to make a false statement and say it was
Sylvester Gray?

A. No.

Q. Correct?

A. No. I thought they caught him red-handed so I wouldn’t have to say
anything.

We cannot see how this line of questions and answers establishes that Boyd was “told by the

police” to identify Kelly as the robber. This testimony is consistent with Boyd’s earlier testimony

15
that he did not see the robber’s face. Instead, Boyd testified that he saw the robber walk across

the street and thought he recognized the robber’s gait.

We overrule this point of error.

VI. Kelly Criticizes the Investigation

In his fifth point of error, Kelly claims the investigation by law enforcement was “so

contrived that it created false testimony.” Kelly points out what he views as discrepancies or

weaknesses in the State’s case, most of which were addressed by trial counsel. In another

questionable reading of the record, Kelly claims Boyd and Morrow must have felt obligated to

identify Kelly as the robber. According to Kelly, they were “[e]ssentially . . . given a choice to

identify the apprehended subject or nobody at all.” In support of this, he cites Boyd’s testimony,

quoted above, that he “thought they caught him red-handed so [he] wouldn’t have to say anything.”

It would seem impossible to discern (and Kelly does not explain) how this testimony indicates that

Boyd and Morrow were compelled to identify Kelly as the assailant. Indeed, as pointed out above,

neither witness identified Kelly as the robber. Rather, each of the men indicated that they saw

someone walk across the street and get into a car, this being followed on the heels by the arrival

of the police and Boyd pointing out the destination of the robber (that destination being the

automobile where Kelly was promptly found).

During cross-examination, trial counsel pointed out that the police failed to sample Kelly’s

hands for gunshot residue, that they failed to note the name of the man who came out of the club

and indicated that he was the owner of the car in which Kelly was found, that Boyd could not recall

the bill he was to pay with his mother’s $490.00 he testified had been taken, and that Kelly’s
16
fingerprints were not found on the pistol discovered in the automobile with him. The jury was free

to weigh the credibility of the witnesses, to resolve inconsistencies in the testimony, and to ascribe

whatever weight they felt appropriate to each witness’ testimony. See Hooper, 214 S.W.3d at 13;

Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). That is the province of the trier of

fact.

We overrule this point of error.10

VII. No Prosecutorial Misconduct in Closing Argument

In his final point of error, Kelly argues that the State presented improper argument, thus

engaging in prosecutorial misconduct. We do not agree and overrule this point of error.11

Permissible jury argument falls into one of four categories: “(1) summation of the

evidence, (2) reasonable deduction from the evidence, (3) an answer to the argument of opposing

counsel, and (4) plea for law enforcement.” Brown v. State, 270 S.W.3d 564, 570 (Tex. Crim.

App. 2008).

As above, we will quote more than the section of the record to which Kelly cites to provide

context, and the statements Kelly claims were impermissible are italicized:

Let me first start the way we all should start and just thank you for your
service to the court. Without you[,] this doesn’t happen. Without you justice is not

10
Kelly argues, “The State resisted all effort to obtain statements from owner of car. . . . State resisted all effort to
obtain photos of driver and passenger . . . for identification purpose.” His trial counsel established these facts in
questioning Officer Gibson. The jury was able to consider the extent and thoroughness of law enforcement’s
investigation.
11
Again, Kelly has presented a multifarious argument, making several complaints within this point of error. In the
interest of justice, we will address his various complaints. Also, unless indicated specifically, no objection was lodged
to any of the complained-of statements.
17
 served today. Without finding Mr. Kelly guilty today justice will not be done. And
that’s why you’re here; that’s why you’re in those seats.

This was the beginning of the State’s closing argument, and the complained-of statement amounted

to the State asking the jury to provide law enforcement. Thereafter, the State went on to summarize

the evidence, and this sentence also announced what could be deemed a reasonable deduction from

the evidence the State was about to summarize. We find nothing improper in that statement.

The State then explained the jury’s deliberation process, going on to recount that they

would retire to a room and select a foreperson and that they could send notes or questions to the

trial court or request any piece of evidence they wanted. Discussing the firearm analysis testimony

(which showed the empty shell casing found outside Boyd’s car was fired from the Glock pistol

found in the car with Kelly), the State said,

You get all of that. Right? And you get to inspect it and examine it. And at the
end of that inspection and examination, you find Mr. Kelly guilty because he is
guilty.
When you go back in that room you take your reason and your common
sense with you. You take your whole life with you. Your life experience goes back
there with you. Right? We don’t become some conspiracy theorists and try to
make things up back in that room. We take what we heard in this courtroom, we
apply our life experience to it, and then we know that Mr. Kelly is guilty. Right?[12]

The State had recently summarized the evidence, and the statement of which Kelly complains

asked the jury to make a reasonable deduction from the evidence. It was not improper.13

12
Again, the language about which Kelly complains is in italic.
13
Kelly also claims in his brief that “[t]here was no mention in these statements as to the evidence being the reason for
a guilty verdict.” He claims these remarks reflected the prosecutor’s personal belief. We do not agree. The
complained-of remark was made after the State summarized key points of evidence. Likewise, when Kelly asserts
that “[t]here was no evidence admitted during trial or in the record showing that the currency that was introduced into
evidence, and the wallet that was introduced into evidence [were] connected with each other,” this argument is not an
18
 Next, Kelly “contends that it was improper for the prosecutor to bolster the state witness

testimony by injecting into the argument her personal opinion about his honesty and truthfulness.”

Kelly cites (but does not quote) two sections of the reporter’s record. First, volume 4, page 50,

lines 19 through 25:

Then you saw [Michael Boyd] when I asked him, but could you identify the
defendant? I could tell he did not want to answer me. You could tell by his
countenance he did not want to say that. He did not want to tell you that, “Yes, I
can identify Sylvester Kelly, and I can identify him by his movement. When he
was walking across the street, the way he carried his body, I knew who that was.”
He didn’t tell the . . . .

Second, volume 4, page 51, lines 3 through 5. We quote before and after Kelly’s citation, which

is italicized, for context:

And what did [Boyd] tell you about that? He said, “He was caught redhanded, so
I didn’t think I was going to have to say anything.” I wouldn’t want to testify
against Sylvester Kelly. He looks like an extremely scary man. So if he was going
to lie, wouldn’t he have lied about that? That’s what matters.

We cannot see how this constitutes an expression of the State’s personal belief regarding Boyd’s

honesty and truthfulness. At most, it is a rhetorical device where the State argued that if Boyd had

actually been fabricating his testimony, it was more logical that he would make up a lie that

conclusively identified Kelly as the robber. Further, this statement was made in the State’s rebuttal

argument, after Kelly’s attorney attacked Boyd’s credibility.

entirely correct representation of the testimony. Neither the wallet nor currency was admitted into evidence, but
photographs of the money and wallet were. Officer Gibson returned them to Boyd at the scene. Gibson said the wallet
had Boyd’s identification in it, and $490.00 in cash was found in Kelly’s pocket. Gibson identified photographs of
the wallet and Boyd’s identification as those he found at the scene, and Boyd identified the photographs as those of
his property. These are pieces of circumstantial evidence pointing to Kelly as the robber.
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 It is improper argument to suggest a witness is afraid of the defendant absent supporting

evidence in the record. See Johnson v. State, 662 S.W.2d 368, 369 (Tex. Crim. App. 1984). The

State’s allusion to Kelly looking like “an extremely scary man” may well have been improper. We

cannot know what body language Boyd displayed on the stand, but there is nothing else in the

record to establish he had a reason to fear Kelly. If that part of the State’s argument was improper,

it was not preserved. At the risk of giving an advisory opinion, we note that even had that error

been preserved, we would have found it harmless beyond a reasonable doubt. Improper jury

argument is non-constitutional error and is disregarded unless it affects the defendant’s substantial

rights. See TEX. R. APP. P. 44.2(b); Freeman v. State, 340 S.W.3d 717, 728 (Tex. Crim. App.

2011). Such harm is gauged by balancing the severity of the misconduct, any curative measures,

and the certainty of the defendant’s conviction without the misconduct. Martinez v. State, 17

S.W.3d 677, 692–93 (Tex. Crim. App. 2000). The State’s improper statement was not egregious.

It was short, not emphasized, and the State turned immediately to answering the defense’s theories

and arguments and to summarizing the evidence. No objection having been lodged, no curative

measures were applied. Kelly’s conviction was much more likely secured by the strength of the

State’s case as recounted above. The State’s comment, if it was error and if it had been preserved,

would have been harmless.

Kelly next argues that the State “bolstered a state witness[,] testimony who the record

clearly shows lied about being a witness to the offense, . . . when she injected into the argument

her personal opinion about Morrow’s honesty.” For this, he cites volume 4, page 17, lines 14

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through 18 of the reporter’s record. There, the State was questioning Bryand about his

conversation at the scene with Boyd:

Q. [By State’s Attorney] Okay. Did you talk to any other witnesses in
that -- from that scene?

A. [By Bryand] No, ma’am. There was some other gentlemen standing
around, but none of the -- nobody else said they witnessed anything.

Kelly does not explain, and we cannot discern, how this has anything to do with Morrow or serves

to inject the State’s opinion about the honesty of any witness.

Finally, Kelly claims that the State “injected into argument remarks that call to absence of

evidence wich [sic] only Appellant could have supplied,” or the State commented on Kelly’s

failure to testify. He cites to the following remarks in the State’s closing argument:

Who is this mystery girl who dropped Sylvester Kelly off [at] the club that night?
Where is she? Why didn’t she come tell us anything? They have subpoena power.
Is it because she doesn’t exist? She doesn’t have a last name. Sylvester Kelly
apparently just met her that night; doesn’t know her number. Right? I mean, you
heard Sylvester’s story. He told it to us. Who is the mystery girl?
Where did the mystery shooter go? Mr. Kelly said, “I never went in the
club,” he was there the whole time then. Right? He must have seen it all happen.
He was in the car where the gun was and the hoodie sitting right next to him, so he
must have seen the man who did shoot come and stuff that gun under the passenger
seat. After all, the gun matches the shell. Where is the mystery shooter?

Where an argument points out the defense’s failure to call a witness and it is claimed that such

argument constitutes a comment on the defendant’s failure to testify, we examine the argument

“from the standpoint of the jury, and the implication that the language used had reference to such

failure to testify must be a necessary one.” Ladd v. State, 3 S.W.3d 547, 569 (Tex. Crim. App.

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1999). Here, the State was pointing out holes in Kelly’s defensive theory. This was not an

improper argument. See id.

We overrule the sixth point of error.

On original submission, we found appellate counsel’s Anders brief to have been

appropriately filed, and we granted his motion to withdraw. In reversing our decision, the Court

of Criminal Appeals held that we “erred to grant appointed counsel’s motion to withdraw and

declare the appellant’s appeal to be frivolous without first satisfying the appellant’s express request

to gain access to the appellate record in order to meaningfully respond to the Anders brief.” Kelly,

436 S.W.3d at 322. After ensuring Kelly was able to review the trial record, we were instructed

to “revisit [our] review of appellate counsel’s Anders brief and motion to withdraw in light of the

appellant’s revised response, if any, and any response from the State.” Id. After reviewing Kelly’s

brief, we find no reversible error. We grant appellate counsel’s motion to withdraw. While we

found possible error in one of the State’s closing arguments, the potential error was not reversible

error, and we cannot say that the Anders brief was inappropriately filed. Regardless, Kelly has

had an opportunity to present his arguments and receive this Court’s review of his trial.

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 We affirm the trial court’s judgment and sentence.14

Bailey C. Moseley
Justice

Date Submitted: March 26, 2015
Date Decided: May 6, 2015

Publish

14
Should appellant wish to seek further review of this case by the Texas Court of Criminal Appeals, appellant must
either retain an attorney to file a petition for discretionary review or appellant must file a pro se petition for
discretionary review. Any petition for discretionary review must be filed within thirty days from either the date of
this opinion or the date on which the last timely motion for rehearing or for en banc reconsideration was overruled by
this Court. See TEX. R. APP. P. 68.2. Any petition for discretionary review must be filed with the clerk of the Texas
Court of Criminal Appeals. See TEX. R. APP. P. 68.3. Any petition for discretionary review should comply with the
requirements of Rule 68.4 of the Texas Rules of Appellate Procedure. See TEX. R. APP. P. 68.4.
23