Opinion issued September 1, 2015




                                    In The

                             Court of Appeals
                                    For The

                         First District of Texas
                           ————————————
                             NO. 01-14-00026-CR
                          ———————————
                         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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