IN THE TENTH COURT OF APPEALS
No. 10-21-00115-CR
ANDRE TYRON KELLEY, Appellant v.
THE STATE OF TEXAS, Appellee
From the 54th District Court McLennan County, Texas Trial Court No. 2018-1573-C2
MEMORANDUM OPINION
Andre Tyron Kelley was convicted of deadly conduct for discharging a firearm
(Count II) and unlawful possession of a firearm by a felon (Count III), both as a habitual
offender and enhanced. See TEX. PEN. CODE §§ 22.05(b)(1); 46.04(a)(1); 12.42. Kelley was
sentenced to 25 years in prison for each count. Because the evidence was sufficient to
support each conviction, the trial court’s judgments are affirmed.
SUFFICIENCY OF THE EVIDENCE
In two issues, Kelley challenges the sufficiency of the evidence to support his convictions, challenging only the evidence relating to the possession or use of a firearm.
The Court of Criminal Appeals has expressed our standard of review of a
sufficiency issue as follows:
When addressing a challenge to the sufficiency of the evidence, we consider whether, after viewing all of the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); Villa v. State, 514 S.W.3d 227, 232 (Tex. Crim. App. 2017). This standard requires the appellate court to defer "to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Jackson, 443 U.S. at 319. We may not re-weigh the evidence or substitute our judgment for that of the factfinder. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). The court conducting a sufficiency review must not engage in a "divide and conquer" strategy but must consider the cumulative force of all the evidence. Villa, 514 S.W.3d at 232. Although juries may not speculate about the meaning of facts or evidence, juries are permitted to draw any reasonable inferences from the facts so long as each inference is supported by the evidence presented at trial. Cary v. State, 507 S.W.3d 750, 757 (Tex. Crim. App. 2016) (citing Jackson, 443 U.S. at 319); see also Hooper v. State, 214 S.W.3d 9, 16-17 (Tex. Crim. App. 2007). We presume that the factfinder resolved any conflicting inferences from the evidence in favor of the verdict, and we defer to that resolution. Merritt v. State, 368 S.W.3d 516, 525 (Tex. Crim. App. 2012). This is because the jurors are the exclusive judges of the facts, the credibility of the witnesses, and the weight to be given to the testimony. Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010). Direct evidence and circumstantial evidence are equally probative, and circumstantial evidence alone may be sufficient to uphold a conviction so long as the cumulative force of all the incriminating circumstances is sufficient to support the conviction. Ramsey v. State, 473 S.W.3d 805, 809 (Tex. Crim. App. 2015); Hooper, 214 S.W.3d at 13.
We measure whether the evidence presented at trial was sufficient to support a conviction by comparing it to "the elements of the offense as defined by the hypothetically correct jury charge for the case." Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). The hypothetically correct jury charge is one that "accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately
Kelley v. State Page 2 describes the particular offense for which the defendant was tried." Id.; see also Daugherty v. State, 387 S.W.3d 654, 665 (Tex. Crim. App. 2013). The "law as authorized by the indictment" includes the statutory elements of the offense and those elements as modified by the indictment. Daugherty, 387 S.W.3d at 665.
Zuniga v. State, 551 S.W.3d 729, 732-33 (Tex. Crim. App. 2018).
A person commits deadly conduct if he knowingly discharges a firearm “at or in
the direction of” an individual. TEX. PEN. CODE § 22.05(b)(1). A person who has been
convicted of a felony commits the offense of unlawful possession of a firearm by a felon
if he possesses a firearm after conviction and before the fifth anniversary of the person's
release from confinement following conviction of the felony, community supervision,
mandatory supervision, or parole, whichever is later. TEX. PEN. CODE § 46.04(a)(1).
Unlawful Possession of a Firearm by a Felon
Because Kelley discusses the sufficiency of the evidence to support this conviction
first, we do so as well. The State was required to prove beyond a reasonable doubt that
Kelley was a felon who was unlawfully in possession of a firearm. See TEX. PEN. CODE §
46.04(a). Kelley does not dispute that he is a felon, but argues that there was insufficient
evidence to link him to the firearm. A person commits a possession offense only if he
voluntarily possesses the prohibited item. TEX. PEN. CODE § 6.01(a). Possession is a
voluntary act "if the possessor knowingly obtains or receives the thing possessed or is
aware of his control of the thing for a sufficient time to permit him to terminate his
control." Id. § 6.01(b).
We analyze the sufficiency of the evidence of possession of a firearm under the
same rules adopted for determining the sufficiency of the evidence in drug possession
Kelley v. State Page 3 cases. Majors v. State, 554 S.W.3d 802, 806 (Tex. App.—Waco 2018, no pet.); Bates v. State,
155 S.W.3d 212, 216 (Tex. App.—Dallas 2004, no pet.). Thus, the State must prove Kelley
(1) exercised care, custody, control, or management over the firearm; (2) was conscious
of his connection with it; and (3) possessed the firearm knowingly or intentionally. See
TEX. PEN. CODE § 1.07(a)(39); see also Greer v. State, 436 S.W.3d 1, 5 (Tex. App.—Waco 2014,
no pet.). The State does not have to prove that Kelley had exclusive possession of the
firearm; joint possession is sufficient to sustain a conviction. Cude v. State, 716 S.W.2d 46,
47 (Tex. Crim. App. 1986); Bollinger v. State, 224 S.W.3d 768, 774 (Tex. App.—Eastland
2007, pet. ref'd). Further, the State can meet its burden with direct or circumstantial
evidence, but it must establish that Kelley's connection with the firearm was more than
fortuitous. Brown v.
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IN THE TENTH COURT OF APPEALS
No. 10-21-00115-CR
ANDRE TYRON KELLEY, Appellant v.
THE STATE OF TEXAS, Appellee
From the 54th District Court McLennan County, Texas Trial Court No. 2018-1573-C2
MEMORANDUM OPINION
Andre Tyron Kelley was convicted of deadly conduct for discharging a firearm
(Count II) and unlawful possession of a firearm by a felon (Count III), both as a habitual
offender and enhanced. See TEX. PEN. CODE §§ 22.05(b)(1); 46.04(a)(1); 12.42. Kelley was
sentenced to 25 years in prison for each count. Because the evidence was sufficient to
support each conviction, the trial court’s judgments are affirmed.
SUFFICIENCY OF THE EVIDENCE
In two issues, Kelley challenges the sufficiency of the evidence to support his convictions, challenging only the evidence relating to the possession or use of a firearm.
The Court of Criminal Appeals has expressed our standard of review of a
sufficiency issue as follows:
When addressing a challenge to the sufficiency of the evidence, we consider whether, after viewing all of the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); Villa v. State, 514 S.W.3d 227, 232 (Tex. Crim. App. 2017). This standard requires the appellate court to defer "to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Jackson, 443 U.S. at 319. We may not re-weigh the evidence or substitute our judgment for that of the factfinder. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). The court conducting a sufficiency review must not engage in a "divide and conquer" strategy but must consider the cumulative force of all the evidence. Villa, 514 S.W.3d at 232. Although juries may not speculate about the meaning of facts or evidence, juries are permitted to draw any reasonable inferences from the facts so long as each inference is supported by the evidence presented at trial. Cary v. State, 507 S.W.3d 750, 757 (Tex. Crim. App. 2016) (citing Jackson, 443 U.S. at 319); see also Hooper v. State, 214 S.W.3d 9, 16-17 (Tex. Crim. App. 2007). We presume that the factfinder resolved any conflicting inferences from the evidence in favor of the verdict, and we defer to that resolution. Merritt v. State, 368 S.W.3d 516, 525 (Tex. Crim. App. 2012). This is because the jurors are the exclusive judges of the facts, the credibility of the witnesses, and the weight to be given to the testimony. Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010). Direct evidence and circumstantial evidence are equally probative, and circumstantial evidence alone may be sufficient to uphold a conviction so long as the cumulative force of all the incriminating circumstances is sufficient to support the conviction. Ramsey v. State, 473 S.W.3d 805, 809 (Tex. Crim. App. 2015); Hooper, 214 S.W.3d at 13.
We measure whether the evidence presented at trial was sufficient to support a conviction by comparing it to "the elements of the offense as defined by the hypothetically correct jury charge for the case." Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). The hypothetically correct jury charge is one that "accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately
Kelley v. State Page 2 describes the particular offense for which the defendant was tried." Id.; see also Daugherty v. State, 387 S.W.3d 654, 665 (Tex. Crim. App. 2013). The "law as authorized by the indictment" includes the statutory elements of the offense and those elements as modified by the indictment. Daugherty, 387 S.W.3d at 665.
Zuniga v. State, 551 S.W.3d 729, 732-33 (Tex. Crim. App. 2018).
A person commits deadly conduct if he knowingly discharges a firearm “at or in
the direction of” an individual. TEX. PEN. CODE § 22.05(b)(1). A person who has been
convicted of a felony commits the offense of unlawful possession of a firearm by a felon
if he possesses a firearm after conviction and before the fifth anniversary of the person's
release from confinement following conviction of the felony, community supervision,
mandatory supervision, or parole, whichever is later. TEX. PEN. CODE § 46.04(a)(1).
Unlawful Possession of a Firearm by a Felon
Because Kelley discusses the sufficiency of the evidence to support this conviction
first, we do so as well. The State was required to prove beyond a reasonable doubt that
Kelley was a felon who was unlawfully in possession of a firearm. See TEX. PEN. CODE §
46.04(a). Kelley does not dispute that he is a felon, but argues that there was insufficient
evidence to link him to the firearm. A person commits a possession offense only if he
voluntarily possesses the prohibited item. TEX. PEN. CODE § 6.01(a). Possession is a
voluntary act "if the possessor knowingly obtains or receives the thing possessed or is
aware of his control of the thing for a sufficient time to permit him to terminate his
control." Id. § 6.01(b).
We analyze the sufficiency of the evidence of possession of a firearm under the
same rules adopted for determining the sufficiency of the evidence in drug possession
Kelley v. State Page 3 cases. Majors v. State, 554 S.W.3d 802, 806 (Tex. App.—Waco 2018, no pet.); Bates v. State,
155 S.W.3d 212, 216 (Tex. App.—Dallas 2004, no pet.). Thus, the State must prove Kelley
(1) exercised care, custody, control, or management over the firearm; (2) was conscious
of his connection with it; and (3) possessed the firearm knowingly or intentionally. See
TEX. PEN. CODE § 1.07(a)(39); see also Greer v. State, 436 S.W.3d 1, 5 (Tex. App.—Waco 2014,
no pet.). The State does not have to prove that Kelley had exclusive possession of the
firearm; joint possession is sufficient to sustain a conviction. Cude v. State, 716 S.W.2d 46,
47 (Tex. Crim. App. 1986); Bollinger v. State, 224 S.W.3d 768, 774 (Tex. App.—Eastland
2007, pet. ref'd). Further, the State can meet its burden with direct or circumstantial
evidence, but it must establish that Kelley's connection with the firearm was more than
fortuitous. Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995); Majors, 554 S.W.3d
at 806.
Because the firearm was not found on Kelley's person or in his exclusive
possession, additional facts must affirmatively link Kelley to the firearm. Greer, 436
S.W.3d at 5; Jones v. State, 963 S.W.2d 826, 830 (Tex. App.—Texarkana 1998, pet. ref'd).
Factors that may establish those links include, but are not limited to, the following:
whether the firearm was in a car driven by the accused, whether the firearm was in a
place owned by the accused, whether the firearm was conveniently accessible to the
accused, whether the firearm was found in an enclosed space, and whether the accused
made any affirmative statement connecting him to the firearm. See Bollinger, 224 S.W.3d
at 774; Corpus v. State, 30 S.W.3d 35, 38 (Tex. App.—Houston [14th Dist.] 2000, pet. ref'd).
See also Majors, 554 S.W.3d at 806 (additional factors listed). No set formula of facts exists
Kelley v. State Page 4 to dictate a finding of affirmative links sufficient to support an inference of knowing
possession. Greer v. State, 436 S.W.3d 1, 5 (Tex. App.—Waco 2014, no pet.); Taylor v. State,
106 S.W.3d 827, 830 (Tex. App.—Dallas 2003, no pet.). The affirmative links ordinarily
emerge from a composition of several factors and the logical force they have in
combination. Bollinger, 224 S.W.3d at 774.
Application
The victim first saw the firearm, a handgun, when Kelley was choking her and
holding the gun to her face, threatening to pull the trigger. This occurred in a bedroom
where the victim had been laying on a mattress on the floor with her baby. The victim
testified that the gun was black and was the same one she had seen in a photograph
shown to her after the offense. Later, Kelley threw the victim against the bedroom wall
and fired the gun in the victim’s direction. She described the shot as coming toward her
in a downward direction, a detail that was confirmed by the crime scene technician after
discovering a fresh bullet hole in the wall in the bedroom where Kelley and the victim
had struggled. A gun was found underneath the corner of the mattress in that same
bedroom. Its safety was off, and a bullet was in the chamber, ready to be fired. Several
photographs of the gun and where it was located were introduced into evidence. A single
spent casing was found in the bedroom. Although there was no DNA analysis performed
on the gun and fingerprint analysis was inconclusive, the brand and caliber of the spent
casing matched the brand and caliber of the live bullets found in the gun’s chamber and
the magazine. Also, while there was no evidence that Kelley owned the home where the
gun was located, there was testimony that Kelley and the victim had been in a dating
Kelley v. State Page 5 relationship since 2015 and had lived together since Kelley’s release from prison in 2017.
Further, Kelley, the victim, and the victim’s baby were the only people in the home at the
time of the offense.
After viewing the evidence in the light most favorable to the verdict and in light
of the affirmative link factors, any rational trier of fact could have found that Kelley was
in possession of a firearm. Kelley’s first issue is overruled.
Deadly Conduct
In his second issue, Kelley argues that because the evidence was insufficient to
prove he possessed a firearm, the evidence is necessarily insufficient to prove he
discharged a firearm. However, after viewing the evidence in the light most favorable to
the verdict, any rational trier of fact could have found that Kelley discharged a firearm.
Kelley’s second issue is overruled.
CONCLUSION
Having overruled each of Kelley’s issues, we affirm the trial court’s judgments.
TOM GRAY Chief Justice Before Chief Justice Gray, Justice Smith, and Justice Rose 1 Affirmed Opinion delivered and filed October 12, 2022 Do not publish [CRPM]
1 The Honorable Jeff Rose, Former Chief Justice of the Third Court of Appeals, sitting by assignment of the Chief Justice of the Texas Supreme Court. See TEX. GOV'T CODE §§ 74.003, 75.002, 75.003.
Kelley v. State Page 6