                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-09-00312-CR

LADARYL DWAYNE KELLY,
                                                               Appellant
v.

THE STATE OF TEXAS,
                                                               Appellee


                            From the 40th District Court
                                Ellis County, Texas
                              Trial Court No. 33228CR


                           MEMORANDUM OPINION


       Ladaryl Dwayne Kelly was convicted by a jury of the offense of aggravated

robbery and sentenced to thirty years’ imprisonment.           TEX. PEN. CODE ANN. 29.03

(Vernon 2003). Kelly complains that the trial court erred by denying his motion for

directed verdict at the end of the State’s case-in-chief; that the trial court abused its

discretion by denying his motion for mistrial; that the evidence was legally and

factually insufficient; and that the trial court abused its discretion by denying his

motion for new trial based on newly discovered evidence.             Because we find no

reversible error, we affirm the judgment of the trial court.
Directed Verdict

        Kelly complains that the trial court erred by denying his motion for a directed

verdict at the close of the State’s case-in-chief because there was insufficient evidence to

establish that he was criminally involved in the aggravated robbery. A motion for a

directed verdict is a challenge to the legal sufficiency of the evidence. Williams v. State,

937 S.W.2d 479, 482 (Tex. Crim. App. 1996). In reviewing the legal sufficiency of the

evidence, we look at all of the evidence in the light most favorable to the verdict to

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, 61 L. Ed. 2d

560, 99 S. Ct. 2781 (1979); Bigon v. State, 252 S.W.3d 360, 366 (Tex. Crim. App. 2008).

        Under a legal sufficiency review, we consider all of the evidence admitted, both

properly and improperly admitted, as well as direct and circumstantial evidence.

Conner v. State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). The jury, as the sole judge of

the witnesses’ credibility and the weight to be given to their testimony, is free to accept

or reject any or all of the evidence presented by either side. See Margraves v. State, 34

S.W.3d 912, 919 (Tex. Crim. App. 2000). We must give deference to “the responsibility

of the trier of fact 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 v. Virginia, 443 U.S. at 318-19).

Circumstantial evidence is as probative as direct evidence in establishing the guilt of an

actor and can alone be sufficient to establish guilt. Guevara v. State, 152 S.W.3d 45, 49

(Tex. Crim. App. 2004).

Kelly v. State                                                                        Page 2
        Kelly argues that the evidence was insufficient to connect him to the aggravated

robbery. Kelly was charged both as a principal and under the law of parties. See TEX.

PENAL CODE ANN. §§ 7.01(a), 7.02(a)(2) (Vernon 2003). Therefore, if there is legally

sufficient evidence that Kelly acted as either a principal or party to the offense, we will

uphold the jury’s verdict. See Rabbani v. State, 847 S.W.2d 555, 558 (Tex. Crim. App.

1992) (“The principle is well-established that when the jury returns a general verdict

and the evidence is sufficient to support a guilty finding under any of the allegations

submitted, the verdict will be upheld.”).

        Under the law of parties, “[a] person is criminally responsible as a party to an

offense if the offense is committed by his own conduct, by the conduct of another for

which he is criminally responsible, or by both.” TEX. PEN. CODE ANN. § 7.01(a) (Vernon

2003). A person is “criminally responsible” for an offense committed by the conduct of

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. Id. § 7.02(a)(2). Evidence is sufficient to convict under the law of parties where

the accused is physically present at the commission of the offense and encourages its

commission by words or other agreement. Ransom v. State, 920 S.W.2d 288, 302 (Tex.

Crim. App. 1994).

        In determining whether an accused participated as a party, the fact-finder may

examine the events occurring before, during, and after the commission of the offense

and may rely on actions of the accused that show an understanding and common

design to commit the offense. Id. Further, circumstantial evidence may be used to

Kelly v. State                                                                       Page 3
prove party status. Id. To convict under the law of parties, when the defendant is not

the “primary actor,” the State must prove (1) conduct constituting an offense, and (2) an

act by the defendant that was done with the intent to promote or assist such conduct.

Christensen v. State, 240 S.W.3d 25, 31 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d).

The State’s Case-in-Chief

        At approximately 1:15 a.m., a masked man carrying a gun got out of a green Ford

vehicle and approached a guard at Celadon Trucking. The masked man pushed the

gun into the guard’s neck and forced him into a guard shack, when a second man

entered and pointed a gun at the guard. The guard was tied up with duct tape. A truck

and trailer carrying cigarettes worth approximately two million dollars ($2,000,000.00)

was then stolen from that facility. The truck and trailer were located by the Dallas

Police Department within hours of the robbery because of a tracking device inside of

the trailer.

        Kelly was identified in a videotape and photographs from Celadon Trucking as

being one of the individuals that had unsuccessfully attempted to steal the same truck

and trailer approximately three hours before the truck and trailer were actually stolen

in the robbery. Kelly’s cell phone number was traced to a tower close to Celadon

Trucking during that same time period.

        Kelly had been working as a confidential informant for the North Texas Auto

Theft Task Force, a multi-law enforcement agency investigation unit whose primary

objective was the investigation of tractor trailer thefts. Detective Cole, a detective with

the Dallas County Sheriff’s Office who had been assigned to the task force, had been in

Kelly v. State                                                                       Page 4
contact with Kelly throughout the evening, but there was a gap in contact during the

time that the robbery took place. Cole knew that a trailer theft was being planned that

night from Kelly, who had called him throughout the day and evening leading up to the

robbery. Cole withheld knowledge of Kelly’s participation in the attempted theft and

robbery for approximately four months after the robbery from the officers investigating

the robbery. Cole also knew that Kelly carried a gun even though he was a convicted

felon. Cole also acknowledged hearing Kelly testify in a previous hearing that he was

going to get $750,000.00 for selling the cigarettes, which would be split between Kelly,

Tasby, and another co-defendant. Kelly had proven reliable in other instances where he

had provided information that had led to the recovery of approximately eight million

dollars’ worth of trucks and trailers.

        One of Kelly’s co-defendants, Tasby, was also identified in the earlier

photographs of the attempted theft. Tasby made several inconsistent statements to the

detectives investigating the theft, but was consistent in his claims that Kelly was

involved in the planning of the theft, including both the earlier attempt and the robbery.

Further, Tasby had claimed in those statements that Kelly had recruited the gunmen for

the robbery.

        The employees of Celadon that testified were unable to identify Kelly as being

involved in the robbery and the guard who was held at gunpoint testified that Kelly

was not one of the gunmen that night.

        Kelly made two incriminating telephone calls while he was in jail after his arrest.

In the first, he told his girlfriend that he had been caught for what they had done in

Kelly v. State                                                                       Page 5
Waxahachie and that two of the other co-defendants, one of which was Tasby, had just

gotten out of jail for. In the second, he told the mother of his daughter that he couldn’t

get a job even as a truck driver with an aggravated robbery on his record and stated,

“And then when they find out what we stole, a f---ing truck.”

        Viewing the evidence in a light most favorable to the verdict, we do not find that

the trial court erred in denying Kelly’s motion for directed verdict at the close of the

State’s case-in-chief. We overrule issue one.

Denial of Mistrial

        Kelly complains that the trial court erred by denying his motion for mistrial after

the State elicited testimony given by Kelly at a pre-trial hearing. The State contends that

Kelly did not preserve his complaint by making a timely objection.

        The State asked a series of questions to Detective Cole regarding the amount that

Kelly was to be paid for the cargo that was on the stolen truck. In response to the

questions propounded by the State, Cole stated that he had heard the testimony that

Kelly and his co-defendants were going to split $750,000.00 after the night of Kelly’s

arrest; he had heard Kelly say that in the same courtroom as the current trial; and he

had heard it in the courtroom at a prior hearing. As the State was asking the next

question, Kelly objected to the use of the prior testimony.

        In order to preserve error for purposes of appeal, an objection should be made as

soon as the ground for objection becomes apparent. TEX. R. APP. P. 33.1; Lagrone v. State,

942 S.W.2d 602, 618 (Tex. Crim. App. 1997). Generally, this occurs when the evidence is

admitted. Dinkins v. State, 894 S.W.2d 330, 355 (Tex. Crim. App. 1995). If a party fails to

Kelly v. State                                                                       Page 6
object until after an objectionable question has been asked and answered, and he can

show no legitimate reason to justify the delay, his objection is untimely and error is

waived. Id. Kelly’s objection was not timely. We overrule issue two.

Legal and Factual Sufficiency

        Kelly complains that the evidence was both legally and factually insufficient for

the jury to have found him guilty of the aggravated robbery. Kelly contends that he

was acting solely as a confidential informant during the times surrounding the

aggravated robbery, that there was insufficient evidence of his intent to commit the

robbery, and that there was insufficient evidence that he was more than merely present

prior to, during, and after the robbery.

Standard of Review

        The standard of review for determining the legal sufficiency of the evidence is

the same as that discussed above for a directed verdict. In a review of the factual

sufficiency of the evidence, we view all the evidence in a neutral light, favoring neither

party. Steadman v. State, 280 S.W.3d 242, 246 (Tex. Crim. App. 2009); Watson v. State, 204

S.W.3d 404, 414 (Tex. Crim. App. 2006). We then ask whether the evidence supporting

the conviction, although legally sufficient, is nevertheless so weak that the fact-finder’s

determination is clearly wrong and manifestly unjust or whether conflicting evidence so

greatly outweighs the evidence supporting the conviction that the fact-finder’s

determination is manifestly unjust. Steadman, 280 S.W.3d at 246; Watson, 204 S.W.3d at

414-15, 417. Unless we conclude that it is necessary to correct manifest injustice, we

must give due deference to the fact-finder’s determinations, “particularly those

Kelly v. State                                                                       Page 7
determinations concerning the weight and credibility of the evidence.” Johnson v. State,

23 S.W.3d 1, 9 (Tex. Crim. App. 2000); see Steadman, 280 S.W.3d at 246.

        In determining whether the evidence is factually insufficient to support a

conviction that is nevertheless supported by legally sufficient evidence, it is not enough

that we “harbor a subjective level of reasonable doubt to overturn [the] conviction.”

Watson, 204 S.W.3d at 417. We may not simply substitute our judgment for the fact-

finder’s. Johnson, 23 S.W.3d at 12; Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App.

1997). Unless the record clearly reveals that a different result is appropriate, we must

defer to the jury’s determination of the weight to be given contradictory testimonial

evidence because resolution of the conflict “often turns on an evaluation of credibility

and demeanor, and those jurors were in attendance when the testimony was delivered.”

Johnson, 23 S.W.3d at 8. A factual sufficiency review of circumstantial evidence is the

same as a review of direct evidence. King v. State, 29 S.W.3d 556, 565 (Tex. Crim. App.

2000); Kutzner v. State, 994 S.W.2d 180, 184 (Tex. Crim. App. 1999) (reasoning that

“[c]ircumstantial evidence, by itself, may be enough to support the jury’s verdict”).

The Remaining Evidence

        Kelly and Stewart, one of the other individuals who participated in the

aggravated robbery, both testified. Both of them stated that Kelly was present at all

times when the robbery was planned, that Kelly recruited one of the participants as well

as the potential seller of the cargo, and that Kelly knew that guns were involved and

that the plan included tying up a guard. The planning of the thefts took place outside

of Kelly’s mother’s residence. Kelly drove Tasby and Stewart to Celadon earlier in the

Kelly v. State                                                                      Page 8
evening when the theft was attempted the first time, and acted as a lookout while Tasby

and Stewart looked in trailers for cargo.

        Kelly acknowledged that he had testified in the earlier hearing that they were

going to be paid $750,000.00 for the cargo and that he knew that guns were going to be

used prior to their departing to go to Celadon the second time, but he was going to

surrender the money to Cole. Kelly stated that he believed that he was working as a

confidential informant that night, and that the intent was to set up the purchaser of the

cargo. Kelly admitted to carrying a gun for his own protection, even though he was a

convicted felon. Kelly affirmed that he had made a good living stealing cargo loads

prior to this incident, although he denied discussing his prior lucrative lifestyle with his

wife from jail.

        Detective Cole testified a second time and explained that Kelly had been working

as a confidential informant and had provided credible information that resulted in the

recovery of trucks on multiple occasions for the North Texas Auto Theft Task Force

after being arrested in 2006. Cole did not, however, get approval from the court to use

Kelly as a confidential informant even though Kelly’s activities as a confidential

informant constituted violations of his felony probation. Kelly called Cole fourteen

times prior to the cargo being found by the Dallas Police Department, but those calls

stopped prior to the robbery. Kelly did not tell Cole that guns were going to be used

and did not inform him that there was going to be a robbery. Kelly told Cole that Tasby

and Stewart were involved, but Cole did not disclose that to the investigating officers.




Kelly v. State                                                                        Page 9
        Cole’s superiors knew that Kelly was working as a confidential informant and

that he had provided credible information previously. Detective Cole was investigated

regarding his use of Kelly as a confidential informant, but had been cleared of

wrongdoing beyond a finding that there had been “procedural oversights” in his

handling of Kelly. Kelly had been paid $750.00 as an informant, and had returned

$500.00 to the task force.

        Ultimately, the jury was called upon to determine whether or not Kelly’s

participation during the planning, execution, and aftermath of the robbery was that

merely of an observer and confidential informant or if his involvement in the planning,

failed attempted theft, the recruitment of participants in the robbery and the brokered

future sale of the cargo, combined with his presence at both the attempted theft and the

robbery, rose to the level of participation as a party. The jury also was called upon to

find whether or not Kelly encouraged the commission of the robbery by his words or

other agreement. Ransom v. State, 920 S.W.2d 288, 302 (Tex. Crim. App. 1994). The jury

was free to believe or disbelieve the witnesses and to observe their demeanor. Viewing

the evidence both in a light favoring the judgment and in a neutral light, we find that

the evidence was both legally and factually sufficient for the jury to have found beyond

a reasonable doubt that Kelly participated in the aggravated robbery as a party. We

overrule issue three.

Denial of Motion for New Trial

        Kelly complains that the trial court abused its discretion by denying his motion

for new trial based on newly discovered evidence.     Kelly filed a motion for new trial

Kelly v. State                                                                   Page 10
alleging that new evidence had been discovered after his trial. The new evidence was a

copy of some cell phone records for a cell phone in the name of Kelly’s stepfather that

showed telephone calls made from that cell phone number to the Dallas County

Sheriff’s Office during the hours after the attempted theft, during the robbery, and after

the robbery. Additionally, Kelly attached an affidavit from one of the jurors that those

cell phone records would have led her and two other jurors to have decided the case

differently.

        The State objected to the affidavit from the juror pursuant to rule 606(b) of the

Texas Rules of Evidence. Rule 606(b) prohibits a juror from providing an affidavit

regarding the deliberations or “the effect of anything on the juror’s mind or emotions or

mental processes, as influencing any juror’s assent to or dissent from the verdict or

indictment.” TEX. R. EVID. 606(b). We agree that the affidavit was inadmissible.

        Kelly would be entitled to have his motion for new trial granted if (1) the newly

discovered evidence was unknown to him at the time of trial; (2) his failure to discover

the new evidence was not due to his lack of due diligence; (3) the new evidence is

admissible and not merely cumulative, corroborative, collateral, or impeaching; and (4)

the new evidence is probably true and will probably bring about a different result in a

new trial. Wallace v. State, 106 S.W.3d 103, 108 (Tex. Crim. App. 2003). The trial court

has discretion to decide whether to grant a new trial based on newly discovered

evidence, and its ruling will not be reversed absent an abuse of discretion. Keeter v.

State, 74 S.W.3d 31, 37 (Tex. Crim. App. 2002). A trial court abuses its discretion in

denying a motion for new trial only when no reasonable view of the record could

Kelly v. State                                                                     Page 11
support the trial court’s ruling. Holden v. State, 201 S.W.3d 761, 763 (Tex. Crim. App.

2006).

         Kelly presented no evidence in his motion for new trial that the evidence was

unknown to him at the time of trial or that the failure to discover the new evidence was

not due to his lack of due diligence. Kelly’s use of another cell phone would be

squarely within Kelly’s personal knowledge. Kelly’s apparent failure to disclose his

alleged use of another cell phone during times critically relevant to his defense could

only be due to his lack of diligence. The records were certainly available to be sought

prior to trial had Kelly disclosed that the phone was used to his attorney and

investigator, and there is nothing in the record to the contrary. The trial court did not

abuse its discretion in not granting Kelly’s motion for new trial. We overrule issue four.

Conclusion

         We find that the trial court did not err by denying Kelly’s motion for a directed

verdict. We also find that Kelly’s complaint regarding the denial of his motion for

mistrial was not properly preserved by a timely objection at trial. Further, we find that

the evidence was both legally and factually sufficient for the jury to have found Kelly

guilty as a party beyond a reasonable doubt. Lastly, we find that the trial court did not

abuse its discretion in failing to grant a new trial based on newly discovered evidence.

We affirm the judgment of the trial court.



                                          TOM GRAY
                                          Chief Justice


Kelly v. State                                                                     Page 12
Before Chief Justice Gray,
       Justice Reyna, and
       Justice Davis
Affirmed
Opinion delivered and filed September 8, 2010
Do not publish
[CRPM]




Kelly v. State                                  Page 13
