Ladaryl Dwayne Kelly v. State ( 2010 )

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).
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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
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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
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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
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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
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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
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Before Chief Justice Gray,
Justice Reyna, and
Justice Davis
Affirmed
Opinion delivered and filed September 8, 2010
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