                                                                              ACCEPTED
                                                                         06-12-00141-CR
                                                               SIXTH COURT OF APPEALS
                                                                    TEXARKANA, TEXAS
                                                                     3/4/2015 4:39:26 PM
                                                                         DEBBIE AUTREY
                                                                                  CLERK

                NO. 06 – 12 – 00141 – CR

                                                        FILED IN
                                                 6th COURT OF APPEALS
     IN THE SIXTH DISTRICT COURT OF          APPEALS
                                                   TEXARKANA, TEXAS
                TEXARKANA, TEXAS                 3/5/2015 12:18:00 PM
                                                     DEBBIE AUTREY
                                                         Clerk

                  SYLVESTER KELLY

                                   Appellant,

                             v.

                 THE STATE OF TEXAS

                                  Appellee


On appeal from the 188TH District Court, Gregg County, Texas
              Trial Court Case No. 41,078-A


           BRIEF OF THE STATE OF TEXAS


          – ORAL ARGUMENT NOT REQUESTED –

                          CARL DORROUGH
                          District Attorney

                          Zan Colson Brown
                          Texas Bar No. 03205900
                          Assistant District Attorney
                          Gregg County, Texas
                          101 East Methvin St., Suite 333
                          Longview, Texas 75601
                          Telephone: (903) 236–8440
                          Facsimile: (903) 236–3701
                                     TABLE OF CONTENTS
INDEX OF AUTHORITIES ...................................................................................2

STATEMENT OF FACTS ......................................................................................3

SUMMARY OF THE ARGUMENT .....................................................................8
ARGUMENT ............................................................................................................9

CONCLUSION AND PRAYER ...........................................................................30

CERTIFICATE OF SERVICE ............................................................................31
CERTIFICATE OF COMPLIANCE ..................................................................31




                                                          1
                                           INDEX OF AUTHORITIES

Federal Cases
Fontaine v. California, 390 U.S. 593, 88 S. Ct. 1229, 20 L. Ed. 2d 154 (1968).....29
Gomez v. Beto, 462 F.2d 596 (5th Cir. 1972) ..........................................................18
Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2788-89, 61 L.Ed.2d 560
  (1979) ....................................................................................................................10
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)
  .................................................................................................................. 15, 16, 30
State Cases
Bone v. State, 77 S.W.3d 828, 836 (Tex. Crim. App. 2002) ...................................17
Brooks v. State, 323 S.W.3d 893, 900 (Tex. Crim. App. 2010) ..............................10
Caldwell v. State, 818 S.W.2d 790 (Tex. Crim. App. 1991), ..................................29
Ex parte Adams, 768 S.W.2d 281 (Tex. Crim. App. 1989) .....................................16
Felder v. State, 848 S.W.2d 85 (Tex. Crim. App. 1992) ..........................................26
Fernandez v. State, 830 S.W.2d 693 (Tex. App.—Houston [1st Dist.] 1992, no
  pet.) ........................................................................................................................20
Goodspeed v. State, 187 S.W.3d 390 (Tex. Crim. App. 2005) ...............................17
Hernandez v. State, 988 S.W.2d 70 (Tex. Crim. App. 1999) ..................................16
Johnson v. State, 691 S.W.2d 619, 627 (Tex. Crim. App. 1984), cert. denied, 474
  U.S. 865 (1985) .....................................................................................................17
King v. State, 29 S.W.3d 556, 563 (Tex. Crim. App. 2000) ....................................10
Lafleur v. State, 79 S.W.3d 129, 136-37 (Tex.App.-Texarkana 2002, no pet.) ......16
Malik v. State, 953 S.W.2d 234 (Tex. Crim. App. 1997) ........................................11
McFarland v. State, 845 S.W.2d 824, 840 (Tex. Crim. App. 1992), overruled on
  other grounds, Bingham v. State, 915 S.W.2d 9 (Tex. Crim. App. 1994) ............17
Miniel v. State, 831 S.W.2d 310, 323 (Tex. Crim. App.), cert. denied, 506 U.S. 885
  (1992) ....................................................................................................................16
Moore v. State, 694 S.W.2d 528, 531 (Tex. Crim. App. 1985) ...............................16
Moore v. State, 849 S.W.2d 350 (Tex. Crim. App. 1993) .......................................29
State v. Davis, 988 S.W.2d 68 (Mo. Ct. App. 1999) ...............................................16
Thompson v. State, 9 S.W.3d 808, 814-815 (Tex. Crim. App. 1999) .....................17
State Rules
Appellate Procedure, Rule 9 (2012).........................................................................32




                                                                2
                           STATEMENT OF FACTS

      Appellant Sylvester Kelly was charged by indictment on November 30,

2011, with the criminal offenses of aggravated robbery; the date of the offense was

alleged as October 30, 2011. CR 3.

      He pleaded not guilty to a jury, but the jury convicted him; he went to the

judge for punishment. CR 48. The following is a summary of the testimony:

      Ryan Gibson and Steven Bryand, Longview Police patrolmen, were

approached by the robbery victim, Michael Boyd, who said he had just been shot

at and robbed and that the suspect, wearing a yellow hoodie had walked across the

street, Estes Parkway, and entered in a tan Lincoln Town Car. 3 RR 30, 33; 4 RR

15. Gibson walked across to the Town Car, where he found Sylvester Kelly, alone

in the rear seat, passenger side. 3 RR 31, 65. Kelly told Gibson he did not know

the owner of the Town Car. 3 RR 65. After identifying himself, Gibson saw Kelly

reach down toward the front passenger seat “as if reaching for something or

stuffing something.” 3 RR 31. The man Gibson arrested was the defendant,

Sylvester Grey, also known as Sylvester Kelly and Gibson identified him in Court.

3 RR 32-33. Under the front passenger seat, Gibson found a Glock .40 caliber

semiautomatic pistol, serial number APK986, which he identified in court as

State’s Exhibit 1A. 3 RR 33, 39. Gibson located the yellow hoodie described by

the victim in the rear passenger seat next to where Kelly had been sitting and


                                        3
Gibson identified it as State’s Exhibit 3 A. 3 RR 33-34, 36. Gibson found the

victim’s wallet next to a fence, less than twenty feet from the Town Car. 3 RR 34-

35. The victim’s Texas ID card was inside, but the wallet contained no money. 3

RR 35. Gibson found the cash missing from the wallet in Kelly’s right front

pocket. 3 RR 36. After videoing the wallet, and after he and the victim completed

and signed the property release form, Gibson returned the wallet and cash to the

victim. SX 7, 3 RR 44-45.

      Gibson collected a .40 caliber shell casing from near the victim’s car and

identified it in court as State’s Exhibit 2A. 3 RR 41.

       Gibson identified in court the complete video recording he made of the

scene was introduced as SX 8 (the suspect’s vehicle and the area surrounding it)

and SX 9 (the victim’s vehicle, and area surrounding it). 3 RR 49-50. Gibson also

identified SX 10-19 a number of still photographs showing the shell casing lying in

the grass near the victim’s, the yellow hoodie, the victim’s wallet, the victim’s id

card found in the wallet, the damaged driver’s side window of the victim’s car, the

bullet hole in the window of same car. 3 RR 56-59.

      Michael Boyd, the victim of aggravated robbery, testified a man in a yellow

hoodie first tapped on his driver’s side window and then shot through the window,

causing Boyd to jump “like between the seats” and “lay still, thinking maybe if he

thought I was dead, he wouldn’t shoot anymore.” 3 RR 91. The robber reached


                                          4
through the shattered window and took Boyd’s wallet from Boyd’s back pocket. 3

RR 91. Boyd had his Texas ID and $490 in his wallet when it was taken. 3 RR 91-

92. State’s exhibit 12 was a picture of Boyd’s wallet, and State’s Exhibit 14 was a

picture of Boyd’s identification card. 3 RR 92. Boyd’s face was cut by the

shattering window glass. 3 RR 94. Boyd said State’s Exhibit 21 is a picture of

Boyd’s bloody face after the shot shattered the window. Boyd did not see the

shooter’s face, as it was shadowed by the big hoodie. 3 RR 95. Boyd had on

sunglasses. 3 RR 101. Boyd looked right at the pistol. 3 RR 104. He could not

identify Kelly’s face as the shooter. 3 RR 105. However, he recognized Kelly as

he walked away by stature, “the way he walks.” 3 RR 95. Kelly (Gray) and Boyd

had gone to elementary school together.        3 RR 96. Boyd did not tell the police

that he recognized Kelly’s walk. 3 RR 99. He did not feel the need to do so

because the police had caught Kelly “red-handed.” 3 RR 107.

      Chris Taylor, a member of the crime scene unit at Longview PD, testified

he tried, but failed, to lift any usable prints from the gun. 3 RR 108, 110.

      Aubrey Morrow testified he had been with Boyd in the car at the time of

the shooting and robbery; they were drinking, smoking marijuana, and listening to

music. 3 RR 121-122. After the shot, he jumped out of the car, ducked down a

minute, and started walking toward the building. 3 RR 123. He thinks he heard

Boyd say “he took my wallet.” 3 RR 125. He observed somebody walk across the


                                           5
street and enter a “yellowish” car on the passenger side. 3 RR 123-124. Although

an officer told Morrow that he needed to talk with him, Morrow took off and

walked away, because he was “wanted.” 3 RR 124.          He could not describe the

shooter or describe what he was wearing. 3 RR 125-126.

      John Beene, firearms expert from the Department of Public Safety in Tyler,

testified the shell casing (SX 2) was fired from the Glock pistol (SX1). 3 RR 140.

      Steven Bryand, the other LPD patrol officer at the scene that night, testified

he took the report from the victim, Gary Boyd, who said he had been robbed and

the actor was in a brown car across the street. 4 RR 15. Bryand observed the

victim’s car, with its shattered window and a bullet hole where the bullet had

exited the front windshield. 4 RR 15. He testified to the abrasions on Boyd’s face.

4 RR 16. He testified that the firearm was capable of causing serious bodily injury

or death. 4 RR 16. Bryand did not test Kelly’s hands for gunshot residue. 4 RR 22.

      Defense counsel asked Kelly on the record if he wanted to testify and Kelly

declined. 4 RR 28.

      Both sides rested, and after the Court read the charge to the jury, closing

arguments began, with Mr. Botto speaking first for the State. In thanking the jury,

he stated, “Without you justice is not served today. Without finding Mr. Kelly

guilty today justice will not be done.” 4 RR 31. In urging them to carefully inspect




                                         6
the evidence of the firearm and casing, he stated, “And at the end of that inspection

and examination, you find Mr. Kelly guilty because he is guilty.” 4 RR 33.

      The attorney appointed as his appellate counsel filed an Anders brief,

specifying that no non-frivolous issues could be raised, and that raising the

following issues would be frivolous: the Batson objection during voir dire, the

sufficiency of the evidence during guilt innocence, and the punishment phase. This

Court agreed.

      Kelly filed a pro-se PDR, claiming he could not properly prepare a brief in

response to an Anders brief without a complete record. The Court of Criminal

Appeals agreed and remanded the case to the Court of Appeals, who arranged for

Kelly to have a record, from which he prepared the current Appellant’s brief.

      Kelly is incarcerated at the Clements Unit, 9601 Spur 591, Amarillo, TX

79107, as number 1802362.




                                         7
                        SUMMARY OF THE ARGUMENT


      The evidence was sufficient for a reasonable jury to find all the elements

were proved beyond a reasonable doubt, including the element that Kelly was the

shooter and thief.

      Kelly has not proved that his trial counsel, Rick Hagan was ineffective. His

allegations of ineffective assistance of counsel were all fruitless or frivolous. Mr.

Hagan could not be expected to make up a defense when there was none.

      Kelly has not proved that either his trial counsel or his appellate counsel was

ineffective. Solomon’s performance was not deficient and Kelly was not

prejudiced by Solomon’s alleged errors. The State did not knowingly use false or

perjured testimony. No pretrial identification as unduly suggestive. There was no

reason to raise the issue of a the lack of a photo lineup. The failure to test for

gunshot residue was not exculpatory and would not be grounds for reversal. The

owner of the car in which Kelly was found had no information relevant to this

case. The prosecutors’ argument was not improper.




                                          8
                                     ARGUMENT

      Appellant has no meritorious ground which can be effectively raised on

direct appeal. The evidence was sufficient; the record does not support a finding of

ineffective assistance of trial counsel or appellate counsel.

      Appellant, writing pro se, has filed a brief raising the following issues:

       I. There was insufficient evidence of guilt, as the victim and an eye witness
failed to identify the accused.

      II. Trial Counsel Rick Hagan was ineffective for a number of reasons.

       III, IV, V, and VI. Appellate Counsel Vernard Solomon was ineffective for
filing an Anders brief. Appellant believes he could have raised several issues.


1) The evidence was sufficient to identify Kelly as the shooter and to prove all
   the essential elements.

   a) Standard of review: Could a reasonable jury find all the elements of
      aggravated robbery beyond a reasonable doubt?

      Appellate courts cannot reverse a defendant’s conviction on grounds of

insufficient evidence unless no rational jury could find the defendant guilty beyond a

reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2788-89, 61

L. Ed. 2d 560 (1979). This question is examined in a light most favorable to the verdict.

Id. Viewing the evidence "in the light most favorable to the verdict" means that the

reviewing court is required to defer to the fact finder’s credibility and weight

determinations because the fact finder is the sole judge of the witnesses' credibility and

the weight to be given their testimony. Brooks v. State, 323 S.W.3d 893, 900 (Tex. Crim.



                                            9
App. 2010). Appellate courts should avoid disturbing a jury’s verdict unless necessary as

a matter of law. King v. State, 29 S.W.3d 556, 563 (Tex. Crim. App. 2000). The State

requests this Court share in that deferential spirit by affirming Appellant’s conviction

based on the evidence presented.


   b) Under a hypothetically-correct jury charge, the evidence was sufficient.

       Evidence sufficiency is measured by the elements of the offense as defined by a

hypothetically correct jury charge, which means a charge which “accurately sets out the

law, is authorized by the indictment, does not unnecessarily increase the state’s burden of

proof or restrict the state’s theories of liability, and adequately describes the particular

offense for which the defendant was tried.” Malik v. State, 953 S.W.2d 234, 239 (Tex.

Crim. App. 1997).

       Using the hypothetically correct jury charge based on the indictment in the present

case, the State had to prove the aggravated robbery by proving that (1) Appellant (2) on

or about October 30, 2011, (3) in Gregg County, Texas, (4) during the course of a theft

(5) with intent to obtain or maintain control of said property         (6) intentionally or

knowingly (7) threaten or place M Boyd in fear of imminent bodily injury or death (8)

used or exhibited a deadly weapon, a handgun. By all accounts, the only element in

question is number one. Who was it that shot out Boyd’s window and took his wallet?




                                            10
       Just to touch all the bases, here are citations to the record for each of the other

elements:

       (2) and (3) Officer Gibson testified that the offense occurred on October 30, 2011,

in Gregg County, Texas. 3 RR 29-30.

       (4) Boyd testified that the person who shot out his window reached in and

removed a wallet full of cash 3 RR 91.

       (5) This shooter’s intent to obtain or maintain control of said property can be

inferred from the testimony that the shooter reached in and took the wallet, that the wallet

was discarded, and the $490 was found in Kelly’s pocket.

       (6) The shooter’s state of mind must be inferred from the fact that he actually

pulled the trigger and immediately took the wallet and walked away. The damage to the

car and to Boyd’s face evidenced that a gun had been shot at the car near Boyd’s face. SX

11-19, 3 RR 58. The fact that the shooter covered his face with a large yellow hoodie

before approaching Boyd’s car shows premeditation—and intent. The jury could have

inferred that from Kelly’s behavior that he intended for Boyd to be placed in fear (acted

intentionally) or knew that his acts would place Boyd in fear (acted knowingly) No

evidence pointed to an accidental discharge of the gun, disregarding potential results,

(acted recklessly). But even if the trigger had been pulled accidentally, “recklessly” could

still be inferred.

       (7) Boyd testified he was frightened that he would be killed. 3 RR 97. When he

was explaining how the wallet was removed from his pocket, he described lying across




                                            11
and between the seats, pretending to be shot, so that perhaps the shooter would not shoot

again. 3 RR 91.

      (8) The State produced the gun, found at Kelly’s feet, which was proved to have

shot the shell casing left by Boyd’s car. SX 1B, 3 RR 39; SX 2A, 3 RR 41. An expert

testified that the shell casing matched one that he had test fired using the gun found at

Kelly’s feet. SX 22. 3 RR 141.

      All the essential elements except the identity of the shooter were uncontested.

      That leaves a discussion of the evidence that Kelly was the shooter/thief. All

evidence is considered, but it is considered in the light most favorable to the verdict.

Could a reasonable jury have found this element beyond a reasonable doubt?

      What evidence points to his guilt and what evidence points to his innocence?

      He was found with money in an amount described by Boyd.

      The wallet described by Boyd containing Boyd’s identification was found just a

few feet away from the Lincoln.

      He was found with the gun and the yellow hoodie described by Boyd.

      The ballistics expert reported that the gun found in the car with Kelly matched the

casing found by Boyd’s car.

      Kelly told police he did not know who owned the Lincoln and that he had entered

it because he was cold.

      He told police he had been dropped off and had never entered the club.

      The Lincoln and Boyd’s car were within plain view of each other.




                                           12
       Boyd and Morrow saw Kelly walk across the street and enter the Lincoln. Neither

testified they saw anyone else enter the Lincoln.

       The police were there immediately because they had been dispatched there on a

different matter—a call that someone inside the club had a gun.

       Kelly was still in the Lincoln, and Boyd was able to immediately tell the police

that the shooter was in the Lincoln.

       Officer Bryand stayed with Boyd and took the description of the yellow hoodie

and the black Glock and the stolen property as Officer Gibson walked across the street

and observed Kelly attempt to hid the Glock. He apprehended Kelly and found the

Glock, the hoodie and the money all within Kelly’s reach, and found the wallet discarded

just a few steps away from the Lincoln

       Boyd could say why he had that much money on him—to pay a bill for his

mother. He could not recall at trial where he was going to pay that bill on a Sunday.

       Boyd told police and the court that he did not get a look at the shooter’s face.

       Morrow told the jury that he did not get a look at the shooter’s face.

       Both saw Kelly leave and get in the Lincoln.

       Morrow did not stay to talk with police because he knew he would be arrested.

Only one of the officers recalled anyone else standing around.

       Morrow testified, however, that he and Boyd were sitting in the car, listening to

music, smoking marijuana and drinking. He said a man came to Boyd’s car, tapped on the

window with a gun, said something like “Give it up,” shot through the window. Morrow

ducked for cover, then heard Boyd say something like “He took my wallet.” When a


                                            13
police officer told Morrow he wanted to talk to him, Morrow walked away to avoid

arrest.

          The damage to his car and his face support Boyd’s story. The amount of money

he described, the hoodie he described, and the gun he described all were found near

Kelly. Even the wallet containing Boyd’s picture identification card was found just steps

away from Kelly. These facts support Boyd’s story.

          The large amount of money found on Kelly’s person, the hoodie found on the seat

beside him, and the Glock found at his feet point to Kelly’s guilt.

          The police officers at this scene did not test Kelly’s hands for gunshot residue, but

they explained that they were neither equipped nor trained to run such tests.

          Boyd testified in court that he recognized Kelly’s stature and gait as he walked

away (having known him since childhood) but did not tell the police he could recognize

him because he did not think it necessary. It appeared to him that the police had caught

Kelly “red-handed.”

          Kelly, after being Mirandized, gave a voluntary statement and told Gibson he had

not been wearing the hoodie, did not know anything about the gun, was there to try to

“hook up” with a girl named Sidney, had just met her, could not give her phone number,

did not know who owned the Lincoln in which he was found, had entered the Lincoln to

get warm, and had not even gone inside the club. As to the money, he said he had been

unemployed for three months, but the money in his pocket was left from his last

paycheck. SX 20. He said he made three or four hundred dollars a week when he was

working. SX 20.


                                               14
       A jury is free to believe or disbelieve any witness’ testimony, or believe part of it

and disbelieve part of it. This jury convicted Kelly because they believed more of Boyd’s

testimony than Kelly’s recorded statement.        They were present and they saw the

demeanor of the witnesses. It was their job to discern who was telling the truth. They

chose to believe Boyd’s testimony because the physical evidence found and the location

where it was found all went to support Boyd’s version of the facts. Any reasonable jury

could have found every essential element beyond a reasonable doubt.


2) Kelly has not proved that his trial counsel was ineffective.

   a) Standard of review: Did trial counsel’s performance fall below an
      objective standard of reasonableness and would the outcome of the trial
      be different but for the allegedly deficient performance?


       Claims of ineffective assistance of counsel are to be evaluated under the standard

of review enunciated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L.

Ed. 2d 674 (1984); see also, Hernandez v. State, State v. Davis, 988 S.W.2d 68, 70 (Mo.

Ct. App. 1999) (adopted the Strickland test). The standard of review has two prongs. See

Strickland, 466 U.S. at 687–88. Under the first prong, Appellant must show that his

counsel’s performance was deficient, or that counsel’s representation fell below an

objective standard of reasonableness. Id. ; LaFleur v. State, 79 S.W.3d 129, 136 (Tex.

App.—Texarkana 2002, no pet.). A claimant must prove that counsel’s representation so

undermined the proper functioning of the adversarial process that the trial cannot be

relied on as having produced a just result. Strickland, 466 U.S. at 686.



                                            15
       The second prong requires Appellant to prove that his counsel’s deficient

performance prejudiced his defense. Strickland, 466 U.S. at 687–88. To demonstrate

prejudice, Appellant must show a reasonable probability that, but for counsel’s deficient

performance, the result of the proceeding would have been different. Id. ; LaFleur, 79

S.W.3d at 137. The failure to satisfy one prong negates a court’s need to consider the

other. Strickland, 466 U.S. at 694.

      Appellant bears the burden of proving ineffective assistance by a preponderance of

the evidence. Ex parte Ex parte Adams, 768 S.W.2d 281, 287 (Tex. Crim. App. 1989)–

88 (Tex. Crim. App. 1989); Moore v. State, 694 S.W.2d 528, 531 (Tex. Crim. App.

1985). Trial counsel’s performance is not to be judged with the benefit of hindsight.

Miniel v. State, 831 S.W.2d 310, 323 (Tex. Crim. App. 1992)(Tex. Crim. App.), cert.

denied, 506 U.S. 885 (1992).

      In reviewing Appellant’s claim of ineffective assistance of counsel, the Court

considers the totality of the evidence before the jury or court. McFarland v. State, 845

S.W.2d 824, 840 (Tex. Crim. App. 1992), overruled by Bingham v. State, 915 S.W.2d 9

(Tex. Crim. App. 1994).        The review of counsel’s performance should be highly

deferential. McFarland, 845 S.W.2d at 824. There is a presumption that the attorney

rendered effective representation; Appellant has the burden of rebutting that presumption.

Id. The record must affirmatively support Appellant’s claims of ineffective assistance of

counsel. Johnson v. State, 691 S.W.2d 619, 627 (Tex. Crim. App. 1984).

      On direct appeal, the record has usually not been sufficiently developed to enable

an appellate court to adequately determine whether the appellant was provided ineffective


                                           16
assistance of counsel. Thompson v. State, 9 S.W.3d 808, 814-815 (Tex. Crim. App.

1999). A claim of ineffective assistance is better pursued by way of habeas corpus, with

which there is a better opportunity for the record to have been developed regarding trial

counsel's reasons for his or her actions. See Goodspeed v. State, 187 S.W.3d 390 (Tex.

Crim. App. 2005); Bone v. State, 77 S.W.3d 828, 836 (Tex. Crim. App. 2002).


   b) Appellant’s claims of trial counsel’s ineffective performance are not
      supported by the record.

      i) There were no other occupants of the car in which Kelly was
         arrested at the time he was arrested. Any attempt to interview them
         would have been fruitless.

   Appellant claims that his trial counsel failed to find and interview the driver and

passenger of the car in which he was arrested. Officer Gibson testified that Kelly

claimed that night that he didn’t know who the car belonged to, and that he had

entered it because he was cold. 3 RR 64-65. Kelly was alone in the car when

apprehended. 3 RR 65. Although counsel got an affirmative answer from

Patrolman Gibson when he asked if he was approached by a man who said, “Hey,

that’s my car,” the officer did not ever identify the man. 3 RR 66-67. Counsel

asked if his name was Bertrand Snoddy, but the officer did not know. The record

supports that Counsel may have known the owner’s name, but does not support

Kelly’s assertion that counsel did not find and interview him before trial. The

record does not support that there was a passenger. The record does not support



                                           17
that counsel’s failure to find and interview them caused the outcome of the trial to

be any different. There is nothing in the record to indicate that the “potential

witnesses” observed anything about the offense. This is a frivolous claim.

   Later, at page 8 of his brief, the appellant adds a citation to a case regarding an

attorney was found ineffective for failure to “pursue appellant’s request to

investigate a named alibi witness.” Gomez v. Beto, 462 F.2d 596 (5th Cir. 1972).

There is nothing in this record to indicate that the owner of the vehicle in which

Kelly was found even knew Kelly, much less that he would provide an alibi.

Nothing in the record shows what the trial counsel knew or what trial strategy he

was following. Sound trial strategy is presumed, and the appellant has failed to

rebut the presumption.


      ii) Hagan was unaware of the chain of custody regarding the currency.


      The brief record excerpt cited by the appellant does not show that the

counselor was unaware of the chain of custody. 3 RR 48, ll. 4-14. It shows only

that the property release form which documented the return of the wallet and

currency to Michael Boyd was introduced as State’s Exhibit 7A, and that Mr.

Hagan did not object. There was nothing objectionable to the evidence and an

attorney is not obligated to make frivolous objections.




                                         18
      iii) The record does not show that Hagan failed to conduct pretrial
          discovery.


      The record does not show that Hagan failed to conduct pretrial discovery.

The Michael Morton Act went into effect on January 1, 2014, well after Kelly’s

trial, but before those major changes, Gregg County District Courts established

standing orders to cover pre-trial disclosure, pre-trial and trial discovery, expert

witnesses, pre-trial motions and settings, trial disclosures, and standing in-limine

orders. These orders were adopted as a local rule by the 124 th and 188th District

Court Judges, Alfonso Charles and David Brabham on February 25, 2011, and is

attached hereto as Exhibit A. Nothing in the record of this case shows that the

defense counsel and prosecutors failed to comply with the standing orders.


      iv) Hagan did not need to file a motion in limine related to the testimony
          of Aubrey Morrow.

      Appellant claims at page 8 of his brief that the record does not show that

Morrow was actually an eye witness. He relies on Officer Bryand’s testimony that

although he was aware of one other gentleman standing around, he did not talk to

any other witnesses besides Michael Boyd.         4 RR 17. Morrow’s testimony

explains that seeming contradiction when he said he heard an officer ask him to

stay and answer some questions, but Morrow, being “wanted,” walked away. 3 RR

124. Morrow did testify that he had been in the car when the shot occurred. 3 RR


                                        19
124. Appellant has not cited to any statute or case which would prohibit the

testimony    of    Aubrey     Morrow.         The    case    he    did   cite    was

Fernandez v. State, 830 S.W.2d 693 (Tex. App.—Houston [1st Dist.] 1992, no

pet.). In Fernandez, the attorney was found ineffective (1) for calling the

defendant’s wife as a witness, thus subjecting her to cross-examination by the

State, when the State could not have called her to testify because of the spousal

immunity, and (2) for failing to object to particularly damaging hearsay testimony.

This case is not applicable to the facts at hand because Morrow was not married to

Kelly, and because Morrow’s testimony was not hearsay.

      Such a motion in limine would have been frivolous. Just because a piece of

evidence or a witness’ testimony is harmful does not mean it is inadmissible.

      v) Hagan failed to prevent testimony from an eye witness; failed to
         request an instruction to disregard the testimony or request a
         mistrial based on the testimony.

      Again, the appellant has failed to show that Morrow’s testimony was

objectionable. A defense attorney cannot prevent testimony if the testimony is not

objectionable.    Only a judge can rule it inadmissible. If the testimony is not

objectionable, there is no need for an objection, a request for instruction to

disregard, or a request for a mistrial. This alleged failure does not prove deficient

performance or prejudice.




                                         20
      vi) Hagan’s failure to raise a viable defense was based on the fact that
         there was no viable defense.


      Appellant asserts that if an attorney fails to assert a viable defense, the

appellant does not have to prove it would be successful. See Appellant’s Brief, at

8. He must, at the very least, however, assert on appeal that some defense existed.

Mr. Kelly was caught red handed immediately after the robbery across the street

from the robbery, with a gun that was tied to the robbery by matching the casing;

he was caught with a large amount of money; he was caught with a hoodie that had

been described by the victim; he had thrown the wallet containing the victim’s

identification not far from where he was found, and he was found in a car, on the

left side, when the victim had pointed to the car and said he entered the left side.

What possible defense is there? Were these all simple coincidences? Mr. Hagan

was left in the unenviable position of having to rely on his cross-examination skills

alone. There was no alibi; there was no other person who confessed; there was no

other person whom to accuse. He attempted to raise reasonable doubt with his

questions, but the facts were stacked against this defendant.

      Appellant has not proved his counsel’s performance fell below an

objectively reasonable standard or that the allegedly substandard performance

caused his conviction. He has failed to prove ineffective assistance of trial counsel.




                                         21
3) (In response to Appellant’s Points III, IV, V, and VI) Kelly has not proved
   that his appellate counsel was ineffective.

   a) Standard of review: Did trial counsel’s performance fall below an
      objective standard of reasonableness and would the outcome of the trial
      be different but for the allegedly deficient performance?

      The same standard of review applies to claims of ineffective appellate

counsel that applies to claims of ineffective trial counsel.


   b) Appellate Counsel Vernard Solomon was not ineffective for filing an
      Anders brief.

      The appointed appellate counsel Vernard Solomon filed an Anders brief in

which he took one point from each phase of the trial and explained why that point

would have been frivolous to argue. His arguments persuaded the Sixth Court of

Appeals that there was no non-frivolous argument to make in an attempt to get a

reversal. Appellant now lists, in his points III, IV, V, and VI, a number of

complaints that should have been raised on direct appeal. These complaints about

Solomon’s failings are all meritless, but will be discussed individually.


      i) The State did not knowingly use false or perjured testimony.


      Appellant’s allegation that the State knowingly used false and perjured

testimony from Aubrey Morrow and failed to correct it is unfounded. Morrow

stated he was a witness to the robbery. Neither Gibson nor Bryand interviewed

him. Neither Gibson nor Bryand was present at the time of the robbery. They

                                          22
came up soon thereafter. Morrow said that an officer indicated he wanted to talk to

him, but Morrow, being “wanted,” did not want to be interviewed, because he

knew that he would be arrested. He therefore walked away before the officers

could talk to him. This explains why the officers were not able to put him in their

report. Bryand did recall another gentleman standing around, but did not interview

him. 4 RR 17. Bryand’s testimony and Morrow’s are not directly in conflict. This

record does not show that the State knowingly elicited false testimony.

      ii) (Appellant’s Issue IV) No pretrial identification was unduly
          suggestive.

       Appellant’s claim that he was subjected to unduly suggestive pretrial

identification is unfounded. This is not a case of finding a suspect at another

location and bringing him back for identification. This man never left the sight of

the victim. Boyd watched him cross the street and enter the car. Then he told

police which car he was in, on which side of the car, and what he was wearing.

Office Gibson found him where the victim said he was, sitting beside the yellow

hoodie. A claim of unduly suggestive pretrial identification would have been

frivolous.

      iii) (Appellant’s Issue V) Record does not support Kelly’s claim that the
           investigation was “contrived” or that the witnesses were obligated to
           agree with police.

      Appellant’s allegations that the robbery investigation was “contrived” and

that witnesses Boyd and Morrow were obligated to agree with the police are

                                        23
without foundation in the record. The robbery investigation was not contrived. It

was just easy. Boyd admitted he never saw the face of the shooter, but he did see

him walk away. He thought he recognized the man in the yellow hoodie as his

childhood schoolmate because of his stature and the way he walked.                     He

maintained visual contact with the car he saw Kelly enter until he could point it out

to police and the police found Kelly there with the gun and the hoodie, Boyd’s

cash, and Boyd’s wallet tossed not very far away.

       iv) Appellate counsel had no reason to object to the lack of a photo lineup.

       Applicant’s allegation that his counsel should have raised the issue that the police

arranged no photographic lineup is not supported by the record. Such an issue would

have been frivolous.    No photographic lineup was required and would have been

pointless. Boyd said he did not see the face. A photograph would not have portrayed the

only identifying characteristics Boyd claimed to have been able to use to identify Kelly—

his stature and gait.

       v) The failure to test for gunshot residue was not indicative of Kelly’s
          innocence, and would not be grounds for reversal.

       Applicant alleges on page 13 that his counsel should have raised the police

officers’ failure to perform an “atomic absorbtion” test to find gunshot residue.

His trial counsel did bring up this failure at the trial. 4 RR 21-22. The answer

from Officer Bryand was that the ordinary patrol officer was not equipped or

trained to perform such a test in the field. 4 RR 22-24.



                                            24
       vi) There was no basis in the record for a belief that a statement from the
           car’s owner would have been relevant to this case.

       Applicant’s allegation that the State didn’t try to get a statement from the car’s

owner or identification from the driver and passenger is an attempted “rabbit trail.” Kelly

told Officer Gibson, at their first encounter, that Kelly did not know the owner of the car;

he had just entered the car because he was cold. 3 RR 65. There is nothing in the record

that would have led officers to believe the owner had any knowledge of the robbery. The

existence of a passenger in the Town Car has no basis in the record. The fact that the

owner later approached the officer saying “That’s my car” does not connect the owner to

the robbery. That man may have been a guest at the club that night, but there is nothing in

the record to show any connection to the robbery. The gun was in a location in the Town

Car near where Officer Gibson saw Kelly make a furtive gesture. Even if there had been

other occupants, the gun was found at Kelly’s feet, so the affirmative link to Kelly would

have been strongest. There is no reason to bring up on appeal a connection that is not

supported by the record.

          vii) The prosecutors engaged in no improper argument. To argue that they
          did would have been fruitless and frivolous.

       Applicant alleges in his sixth issue that the prosecutor engaged in improper

argument when Mr. Botto said, “because he is guilty”; “without a guilty verdict, justice

will not be served”; “we apply our life experience to it, and then we know that Mr. Kelly

is guilty”; and when Ms. Garrett suggested Boyd didn’t identify Kelly because he was

scared to testify against Kelly.

       Applicant correctly states that there are four permissible areas of final argument.


                                            25
“[T]here are four permissible areas of jury argument: (1) summation of the

evidence; (2) reasonable deduction from the evidence; (3) answer to

argument of opposing counsel; and (4) pleas for law enforcement.” Felder v.

State, 848 S.W.2d 85, 94-95 (Tex. Crim. App. 1992) (internal citations

omitted.)

       But the Felder opinion continued: “An argument which exceeds these bounds is

error; however, it only becomes subject to reversal if, in light of the record as a whole,

the argument is extreme or manifestly improper, violative of a mandatory statute or

injects new facts, harmful to the accused, into the trial.” Id.

       Mr. Botto began by thanking the jury for their service, and added, “Without

you, justice is not served today. Without finding Mr. Kelly guilty today justice will

not be done.” 4 RR 31. This statement arguably is just thanking the jury and

emphasizing their importance, but also is a plea for law enforcement.

       When Mr. Botto told the jury they could take the gun and the shell casing

and other evidence back to the jury room, he was encouraging them to pick up

each item and handle it. He said, “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.” 4 RR 33. One can easily argue that Mr. Botto was proposing reasonable

deductions from the evidence when he said, “Your life experience goes back there

with you. Right? We don’t become some conspiracy theorists and try to make



                                              26
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.” It was not

extreme or manifestly improper, and it did not violate any statute or inject any

new, harmful facts. It was not a statement of Mr. Botto’s personal belief. It was

an appropriate closing statement. He did not say, “He’s guilty because I believe

him to be guilty.”    Mr. Solomon, appellate defense counsel, found nothing to

argue about Mr. Botto’s closing statement because there was no improper

argument.

      When Appellant complains that the prosecutors alluded to the money that

was not entered into evidence, he seems to forget State’s Exhibit 7A, the property

receipt signed by both Michael Boyd and Officer Gibson. Although the wallet and

the cash were returned to Boyd that evening, there was a record made of their

existence and that record was introduced. Talking about the wallet and the cash

was not improper argument; it was merely a part of summary of the evidence.

      When Ms. Garrett suggested that Mr. Boyd might have been afraid to

identify Kelly, she was explaining his reluctance to say he identified him by his

stature and gate, and she was further reminding the jury of his explanation for why

he did not tell the police—Boyd thought that since the police caught Kelly red

handed, Boyd would not have to identify him. 4 RR 50-51.

      Ms. Garrett was responding to Mr. Hagan’s argument when she talked about


                                        27
Boyd’s lies. Mr. Hagan first called Boyd a liar, reminding them that Boyd had lied

about why he was arrested a few years ago. Garrett had recalled Boyd to the stand

and asked him to tell the truth, admitting the lie. 3 RR 115. In closing argument,

Garrett had to talk about that lie and persuade the jurors to believe the rest of his

testimony. Her “bolstering” of his testimony added no new facts, her argument

was based on the evidence. She minimized the lie he told and she corrected, saying

that it was not really related to the issues at hand. She reminded the jurors of his

demeanor when he identified him by his stature and gait.           And finally, she

reasoned that if he was intentionally lying just to get Kelly in trouble, he would

have lied and said, “I saw his face, and it was Kelly.” This is a plea for a

reasonable deduction from the evidence, not a statement of her personal opinion.



       Appellant also complains that Mr. Botto called attention to the lack of

evidence that only the defense could have supplied. Only Kelly knew the name of

the woman who allegedly dropped him off at the club.            The cases cited in

Appellant’s brief are Fontaine v. California, 390 U.S. 593, 88 S. Ct. 1229, 20 L.

Ed. 2d 154 (1968); Moore v. State, 849 S.W.2d 350 (Tex. Crim. App. 1993); and

Caldwell v. State, 818 S.W.2d 790 (Tex. Crim. App. 1991), overruled by Castillo

v. State, 913 S.W.2d 529 (Tex. Crim. App. 1995). In each of those cases, the

prosecutor commented on the defendant’s failure to testify, or his failure to show


                                         28
remorse, thereby violating his constitutional privilege against self-incrimination.

Kelly’s complaint is not that the prosecutor commented on his failure to testify, but

on Mr. Botto’s comment that Kelly had the authority to subpoena witnesses but

failed to call the woman who he claimed dropped him off at the club. This is not a

comment on his failure to testify.

      Although Kelly did not testify, he did make a statement to police at the time

of his arrest. In the excerpt of Mr. Botto’s argument that Kelly references, Botto

mentioned that statement and told the jury to ask three questions during Mr.

Hagan’s closing statement: Where is the mystery girl? Where is the mystery

shooter? Why did Kelly have all that money? 4 RR 39-40.

      In his statement to police, Kelly had said that he had been dropped off by a

female, and he had never entered the club. Mr. Botto suggested a reasonable

deduction from that statement would be that Kelly had been there the whole time,

must have seen the shooter, must have seen somebody put the hoodie and the gun

in the car with him. These questions were not a comment on Kelly’s failure to

testify; they were a comment on the holes in the story he told to police. Such

questions are proper in that they request the jury to look at the evidence and draw

reasonable conclusions.

      The arguments that appellant complains of are not extreme or manifestly

improper. They do not violate a statute, and they do not inject new, harmful facts


                                         29
into the trial. Mr. Solomon recognized this and elected not to raise the issue of

improper argument. He committed no error in so doing.

      viii) Conclusion: Appellant’s claim of ineffective appellate counsel does
      not meet the Strickland standard.

      Appellant has not met the burden of proving deficient performance or

prejudice on the part of his trial counsel or his appellate counsel. He has not

rebutted the strong presumption that every decision of his counsel was based on

sound legal strategy.


                           CONCLUSION AND PRAYER

      All of Kelly’s claims are meritless. The evidence was more than sufficient.

Mr. Hagan’s representation was effective.          Mr. Solomon’s Anders brief was

correct, and the Court of Appeals opinion was accurate. There were no non-

frivolous issues.

      The State therefore prays that the trial court’s judgment be affirmed.


                                         Respectfully submitted,


                                         /s/Zan Colson Brown
                                         Zan Colson Brown
                                         Texas Bar No. 03205900
                                         Assistant District Attorney
                                         101 East Methvin St., Suite 333
                                         Longview, TX 75601
                                         Telephone: (903) 236–8440
                                         Facsimile: (903) 236–3701


                                           30
                             CERTIFICATE OF SERVICE

      I certify that a true and correct copy of the above and foregoing has been
forwarded to the pro se appellant by first class mail.

Sylvester Kelly, # 1802362
Clements Unit
9601 Spur 591
Amarillo, Texas 79107


this 4th day of March, 2015.

                                               /s/   Zan Colson Brown
                                               Zan Colson Brown
                                               Assistant District Attorney




                        CERTIFICATE OF COMPLIANCE

      I certify that the foregoing document complies with Texas Rules of
Appellate Procedure, Rule 9 (2012) regarding length of documents, in that
exclusive of caption, identity of parties and counsel, statement regarding oral
argument, table of contents, index of authorities, statement of the case, statement
of issues presented, statement of jurisdiction, statement of procedural history,
signature, proof of service, certification, certificate of compliance, and appendix, it
consists of 7205 words.

                                               /s/Zan Colson Brown
                                               Zan Colson Brown
                                               Assistant Criminal District Attorney




                                          31
