AFFIRMED and Opinion Filed August 16, 2024
S In The Court of Appeals Fifth District of Texas at Dallas No. 05-23-00396-CR
BREYON ALEXANDER PENNY, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 1 Dallas County, Texas Trial Court Cause No. F20-15502-H
MEMORANDUM OPINION Before Justices Reichek, Goldstein, and Garcia Opinion by Justice Goldstein Breyon Alexander Penny appeals his capital murder conviction. A jury
convicted appellant, and the trial court sentenced him to life imprisonment. In three
issues, appellant argues the evidence is legally insufficient to prove that the
underlying murder occurred in the course of a robbery, and State’s exhibits 60 and
62 were not relevant and were unfairly prejudicial. We affirm the trial court’s
judgment. BACKGROUND
In July 2021, appellant was charged by indictment with capital murder.
Specifically, the indictment charged that, on June 16, 2020, appellant intentionally
caused the death of Adarryl Chaney by shooting him with a firearm, and appellant
was then and there in the course of committing and attempting to commit the offense
of robbery.
The facts in this case are largely undisputed. On June 16, 2020, Chaney was
sitting in his parked car outside the Preferred Place Apartments in Dallas a little
before midnight. A black Kia pulled up behind Chaney’s car, and two men with
guns jumped out and approached Chaney’s car. One of the men approached the
driver’s side, and one approached the passenger side. Both men shot into Chaney’s
car, and the man on the driver’s side touched the door handle. The man on the
passenger side reached for the door handle. Both men then ran back to the black
Kia, which sped away. The driver’s side shooter hit Chaney in the left temple, killing
him. The passenger side shooter hit Chaney in the right arm. At trial in April 2023,
the State introduced a date- and time-stamped surveillance video that recorded the
shooting.
Dallas police officer Bradley Tillery testified he responded to the scene of the
shooting and saw a bullet hole in Chaney’s window and Chaney “slumped over to
the side.” Tillery opened the door. Tillery thought he had seen oxygenated blood
coming out of Chaney’s nose “like bubbles,” and he thought “there was a chance he
–2– was breathing.” But when Tillery checked for a pulse on Chaney’s neck, he did not
feel anything. Tillery did not search Chaney’s vehicle, but he testified “about
$4000” and a backpack containing marijuana were recovered from the vehicle.
Juzari Hall testified he knew appellant as Baamp. The prosecutor showed
Hall photographs of four men with guns standing on a black car, and Hall testified
he and appellant were two of the men. Hall testified one of the other men in the
photos was Zadarron Reedy, but he did not know the fourth man. In the photos,
appellant was wearing a black “doo rag” or swim cap, a black shirt with writing on
it, and “zebra stripe” underwear visible. Appellant was also wearing shoes Hall
identified as “Jordans” that were black and blue.
The prosecutor played the surveillance video of the shooting during Hall’s
testimony and then showed Hall still photographs from the video. The trial court
granted permission for the prosecutor to treat Hall as a hostile witness. Hall testified
that he was in the black car at the shooting, Reedy was the shooter on the driver’s
side of Chaney’s car, and appellant was also outside the car with his right arm
extended.
Hall testified that, after Chaney was shot and killed, appellant and Reedy
“jumped back into the car.” Hall then confirmed that, right after the shooting, Hall
and appellant went “over to a hotel party” in the same car. Hall testified that
surveillance still photos showed appellant wearing a shirt “with a big glittery V on
his back” at the hotel.
–3– Dallas police detective Cynthia Kovach testified she did background
investigation through social media in this case. Kovach began working her way
through the Instagram account of Dominique Robinson, known as “12K,” an
individual whose name was provided by another detective. Kovach also worked
through the social media accounts of Reedy and appellant. Reedy “was pretty easy
to find,” and Kovach found a photo on Reedy’s social media depicting a black Kia
Optima and appellant wearing “the doo-rag on his head, the shirt that says ‘friends,’
the zebra-striped underwear, and the black pants, and the Jordans are black over
blue.” “[R]ibbons in the background” enabled police to figure out the location
depicted in the photo was a U-Haul located at 3900 South Cockrell Hill. The
prosecutor introduced into evidence a map showing the locations of the U-Haul, the
shooting, and the hotel party, and Kovach agreed that all three locations were “a few
blocks from each other.”
Kovach looked up the shirt appellant was wearing in the photo and determined
the “V” on the shirt stood for “Vlone,” a “brand that’s very popular with young
people.” Kovach found a shirt that matched appellant’s exactly. Referring to still
photos from the video of the shooting, Kovach testified that, on the right side, there
was a “male with zebra-striped underwear and shirt going around the car to the
passenger side.” Kovach searched police databases and found a Kia Optima that
“matched exactly to this” and had been stolen earlier on the day of the shooting. The
Kia was recovered by police at the hotel where appellant attended the party on the
–4– night of the shooting. Before “anyone realized they had the vehicle used in this,” it
was released back to the owner. The State also introduced photographs of “Jordan
12” shoes that Kovach agreed were “a fair representation of what [she] was able to
locate on [appellant].”
Dallas police detective Scott Sayers testified he extracted videos from
Reedy’s cell phone, including State’s Exhibits 60 and 62. Exhibit 60 was recorded
June 16, 2020, at 8:22 a.m. and shows Reedy and appellant during the daytime
exhibiting handguns. The prosecutor argued the exhibit showed “the same doo-rag,
skull cap or whatever you call it, wave cap, and the Jordans are there that match.”
Appellant objected to Exhibit 60 on the basis that it was more prejudicial than
probative under rule 403 and argued that it was “unduly prejudicial” because it
showed appellant with a gun “hours prior” to the shooting. The trial court orally
ruled that the probative value outweighed the prejudicial value and admitted the
exhibit.
Exhibit 62 from “the same day at 10:35 a.m.” showed Reedy sitting in the
front passenger seat of the Kia next to appellant with other unidentified individuals
in the back seat. Both Reedy and appellant are exhibiting handguns. Appellant made
“the same 404(b) objection and 403” and characterized the whole video as
“prejudicial in so far as it’s an extraneous act not related to the actual incident that
we are litigating at Preferred Place.” The prosecutor responded that the video
specifically placed appellant and Reedy “in a Kia together that day” and
–5– corroborated Hall’s testimony. The trial court overruled appellant’s objection and
again orally ruled that the probative value outweighed the prejudicial value. Based
on the clothing used to identify the men involved in the case, Sayers identified
appellant as the man who shot first into Chaney’s car as shown in the surveillance
video of the shooting.
Dallas police detective Steven Jedlowski testified that, on June 14, 2020,
Charles Middleton, a friend of Chaney, was robbed at gunpoint. After the robbery,
“Chaney was trying to assist in locating the individuals who robbed” Middleton. In
the course of his investigation, Jedlowski developed information that Reedy and
Robinson were the ones who “robbed and shot at” Middleton and his associates. The
State introduced surveillance video showing Middleton sitting in his vehicle when
another car boxed Middleton in. “[M]ultiple individuals” got out of the suspect car,
and one approached the driver’s side of Middleton’s vehicle and one approached the
passenger side. “[P]eople were shot,” and the gunmen opened the driver’s door and
passenger door, got the people out of Middleton’s vehicle at gunpoint, and drove
away. In response to questioning, Jedlowski agreed that, “[i]f the only purpose was
to retaliate, they wouldn’t walk up and grab the handle and try to get them out” of
Middleton’s car.
In closing argument, the prosecutor emphasized that Reedy’s “involvement in
this capital murder” was “undisputed,” and it was also undisputed that appellant was
“as guilty as” Reedy. The prosecutor described the evidence as showing “the
–6– progression of the day” during which appellant wore “this distinct clothing all day
long.” As to evidence of robbery, the prosecutor argued as follows:
The Defendant was in the course of committing or attempting to commit the offense of robbery. Y’all heard a whole bunch of things about retaliation and remuneration for this aggravated robbery that took place two days before, exactly the same way with the same people he was with that night. We’ve heard a whole lot about that. Okay. So in this Charge there are four options: capital murder, murder, aggravated assault and not guilty. Based on that right there, there are only two choices, and that’s capital murder or murder.
Appellant’s counsel addressed the evidence of robbery as follows:
If you watch that video closely, if you watch it closely, as Detective Sayers said yesterday, you can’t see the person on the passenger side if they make contact with the car or if they’re touching the handle or anything like that. But we see Zadarron Reedy on the driver’s side. Once you see -- I implore you to watch the video, and you will see what I am telling you is true. He walks up first. He stands up on the curb. He steps off slightly, and he gets back up on the curb, and he loses his balance. It happens in about a 1-to-2-second instant. He lunges forward and puts his hand out to brace himself on the car. Then he regains his balance. He never tries to open the door. He wasn’t there to rob Mr. Chaney.
***
You know, you all paid careful attention. On June 14th of 2020, Zadarron Reedy and Robert Pearce and Dominique Robinson robbed Charles Middleton, took his car. I told you at the beginning, it’s undisputed that Zadarron Reedy killed Mr. Chaney. Zadarron Reedy, from what we saw on the videos, he liked to take out his phone, and the things he writes in his Instagram, he was a maniac; a straight maniac. Fortunately, he’s been held accountable. He’s out of the way. The reason he was there on June 16th of 2020 to find Mr. Chaney is because Mr. Chaney was trying to find out who robbed Mr. Middleton. Make no mistake about it. So that X’s out the robbery on their indictment. With that gone, there is no capital murder.
–7– In addition to arguing that the murder was not connected to a robbery, defense
counsel argued that appellant was not the passenger side shooter:
What you don’t see is who is on the passenger side. The video is not - - they want to make it -- you know, Detective Sayers wants to come in here and talk to you like this is just some sort of open-and-shut deal; that it’s clear cut, you know. The crime scene officer, Fletcher, says she took fingerprint samples off the car; swabbed for DNA. Where is any of that stuff? They don’t have it. They likely don’t have it because it never existed for anything to show it was Breyon Penny on the passenger side of the vehicle. If they had it, they would bring it to you. But if they didn’t submit it because the detective is lazy or incompetent, well, you don’t hold that against him. They don’t have any physical evidence. They’ve got some grainy surveillance video. If they thought this video -- if they thought this video was clear cut, they wouldn't have brought you Juzari Hall.
At the conclusion of the evidence, the jury found appellant guilty of capital murder
as charged in the indictment. This appeal followed.
ANALYSIS
1. Legal Sufficiency Challenge
In his first issue, appellant argues the evidence is legally insufficient to prove
he committed the underlying murder in the course of a robbery.
When we review the sufficiency of the evidence to support a conviction, we
uphold the conviction if any rational trier of fact could have found all essential
elements of the offense proved beyond a reasonable doubt. Edward v. State, 635
S.W.3d 649, 655 (Tex. Crim. App. 2021). In conducting our review, we consider
the evidence in the light most favorable to the verdict. Id. The jury is the sole judge
of the weight and credibility of the evidence, and it may choose to believe all, some,
–8– or none of the evidence presented. Id. Moreover, the jury may draw reasonable
inferences from the evidence, and the evidence is sufficient to support a conviction
if the inferences necessary to establish guilt are reasonable based on the cumulative
force of all the evidence when considered in the light most favorable to the verdict.
Id. at 655–56. Circumstantial evidence is as probative as direct evidence in
establishing an actor's guilt, and circumstantial evidence alone can be sufficient to
establish guilt. O’Reilly v. State, 501 S.W.3d 722, 726 (Tex. App.—Dallas 2016, no
pet.).
We measure the sufficiency of the evidence against the hypothetically correct
jury charge, defined by the statutory elements as modified by the charging
instrument. Edward, 635 S.W.3d at 656. To convict appellant of capital murder as
charged by the indictment, the State had to prove, and the jury had to find, he
intentionally committed the murder in the course of committing or attempting to
commit a robbery. TEX. PENAL CODE § 19.03(a)(2). A person commits the offense
of robbery if, in the course of unlawfully appropriating property with the intent to
deprive the owner of property, and with the intent to obtain or maintain control of
the property, he intentionally, knowingly, or recklessly causes bodily injury to
another. Id. § 29.02(a)(2). The court of criminal appeals has held that a capital
murder is committed “’in the course of committing’ an offense listed in section
19.03(a)(2), supra, as conduct occurring in an attempt to commit, during the
commission, or in the immediate flight after the attempt or commission of the
–9– offense.” McGee v. State, 774 S.W.2d 229, 234 (Tex. Crim. App. 1989) (citing Riles
v. State, 595 S.W.2d 858, 862 (Tex. Crim. App. 1980)). Proof of a completed theft
is not required to establish the underlying offense of robbery; rather, a jury may infer
the requisite intent from circumstantial evidence and from the defendant’s conduct.
Jones v. State, No. 05-18-00588-CR, 2019 WL 4071995, at *3 (Tex. App.—Dallas
Aug. 29, 2019, pet. ref’d) (mem. op.) (not designated for publication).
Viewing the evidence in the light most favorable to the verdict, as we must,
see Edward, 635 S.W.3d at 655, we find there is sufficient evidence from which a
rational jury could conclude beyond a reasonable doubt that appellant acted in the
course of attempting to commit a robbery. See TEX. PENAL CODE § 29.01(1); Riles,
595 S.W.2d at 862. The jury saw the surveillance video of the shooting in which
appellant, wearing the same clothes he wore earlier in the day and later at the party,
approaches the passenger side of the car and shoots Chaney first. Reedy, having
recorded videos and taken photographs with appellant earlier in the day, also shot
Chaney and touched the door handle of Chaney’s car. The jury viewed the video,
and the jury was free to interpret the events depicted in the video and draw
reasonable inferences therefrom. Further, the jury was free to disbelieve appellant’s
argument that Reedy tripped and grabbed the door handle for support and instead
infer that Reedy was interrupted or otherwise deterred in his attempt to enter the car
and rob Chaney. Reedy’s previous participation in the very similar robbery of
Middleton could have led the jury to infer that Reedy planned to rob Chaney the
–10– same way. The evidence of appellant’s interaction with Reedy on the day of the
shooting was extensive: videos taken during the day of the shooting showed Reedy
and appellant were together brandishing firearms in the car used in the shooting;
Reedy and appellant, along with two other men, were shown in photographs holding
firearms and posing with the black Kia used in the shooting; the jury saw video of
the shooting itself in which Reedy and appellant approached Chaney’s car from both
sides with Reedy on the driver’s side and appellant on the passenger side, both shot
Chaney, and Reedy momentarily grabbed Chaney’s car door handle. From this
evidence, the jury could infer that Reedy communicated his intent to rob Chaney to
appellant, and both Reedy and appellant had the intent to rob Chaney at the time of
the shooting. Even if there was a motive to retaliate against Chaney, that did not
rule out the motive on the part of Reedy and appellant to rob Chaney, given the fact
that he had approximately $4000 in cash with him. The fact that they did not succeed
in taking the $4000 did not preclude the jury from inferring the necessary intent to
commit robbery. See Jones, 2019 WL 4071995, at *3. We overrule appellant’s first
issue.
2. Extraneous Evidence
In his second and third issues, appellant argues State’s exhibits 60 and 62 were
not relevant and were unfairly prejudicial. These exhibits were videos showing
Reedy and appellant during the daytime exhibiting handguns.
–11– We review a trial court’s decision to admit or exclude evidence under an abuse
of discretion standard. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App.
1991) (op. on reh’g). We reverse a trial court’s ruling only if it is outside the “zone
of reasonable disagreement.” Id. If a trial court’s decision is correct under any
theory of law applicable to the case, we will uphold it. De La Paz v. State, 279
S.W.3d 336, 344 (Tex. Crim. App. 2009).
Evidence is relevant when it has any tendency to make a fact of consequence
in determining the action more or less probable than it would be without the
evidence. TEX. R. EVID. 401. If the evidence provides even a small nudge toward
proving or disproving a fact of consequence, it is relevant. Gonzalez v. State, 544
S.W.3d 363, 370 (Tex. Crim. App. 2018). “A ‘fact of consequence’ includes either
an elemental fact or an evidentiary fact from which an elemental fact can be
inferred.” Henley v. State, 493 S.W.3d 77, 84 (Tex. Crim. App. 2016).
Rule 403 provides that the trial court may exclude relevant evidence if its
probative value is substantially outweighed by a danger of unfair prejudice,
confusing the issues, misleading the jury, undue delay, or needlessly presenting
cumulative evidence. TEX. R. EVID. 403. We evaluate the following four factors
when conducting a rule 403 analysis: (1) the probative value of the evidence; (2) the
potential to impress the jury in some irrational, yet indelible way; (3) the time needed
to develop the evidence; and (4) the proponent’s need for the evidence. State v.
Mechler, 153 S.W3d 435, 440 (Tex. Crim. App. 2005); Montgomery, 810 S.W.2d at
–12– 389–90. In doing so, we balance the inherent probative force of the evidence with
the proponent’s need for the evidence against any tendency of the evidence to
suggest a decision on an improper basis, to confuse or distract the jury from the main
issues of the case, or to be given undue weight, and against the likelihood that the
presentation of the evidence will consume an inordinate amount of time or merely
repeat evidence already admitted. Gigliobianco v. State, 210 S.W.3d 637, 641–42
(Tex. Crim. App. 2006). This balancing test “is always slanted toward admission,
not exclusion, of otherwise relevant evidence.” De La Paz, 279 S.W.3d at 343.
Here, exhibits 60 and 62 were probative of appellant’s association with Reedy,
the shooter on the driver’s side of Chaney’s car, appellant’s access to firearms,
appellant’s clothing as seen in other videos, and appellant’s familiarity with the
stolen Kia used in Chaney’s shooting. Other than concerns over the possible
prejudicial effect of the exhibition of firearms or charges for unlawful carrying of a
weapon, the videos lack the potential to confuse or mislead the jury or otherwise
impress the jury in some irrational, yet indelible way. The videos were brief. And,
because appellant’s identity was in issue, the State established the need for this
evidence to further link appellant with Chaney’s murder and attempted robbery. See
Mechler, 153 S.W3d at 440. Thus, we conclude the trial court did not abuse its
discretion in determining the probative value of exhibits 60 and 62 was not
substantially outweighed by a danger of unfair prejudice, confusing the issues,
–13– misleading the jury, undue delay, or needlessly presenting cumulative evidence. See
TEX. R. EVID. 403; Montgomery, 810 S.W.2d at 391.
Generally, the State cannot present evidence of prior crimes, wrongs, or other
acts to show that a defendant acted in accordance with that character or had a
propensity to commit the crime. TEX. R. EVID. 404(b). However, extraneous offense
evidence may be admissible if it is relevant for other purposes, “such as proving
motive, opportunity, intent, preparation, plan, knowledge, identity, absence of
mistake, or lack of accident.” TEX. R. EVID. 404(b)(2). Extraneous evidence may
also be admissible to rebut a defensive theory. De La Paz, 279 S.W.3d at 344–47.
Through closing argument, appellant maintained that evidence “never existed
for anything to show it was Breyon Penny on the passenger side of the vehicle” that
belonged to Chaney, and the video of the shooting was “grainy” and not “clear cut.”
Thus, appellant’s identity as the passenger side shooter remained at issue through
the conclusion of the guilt/innocence phase of trial. Exhibits 60 and 62 were relevant
to establish appellant’s identity as the shooter on the passenger side of Chaney’s car.
Intertwined with evidence of identity, the two exhibits showed appellant was with
Reedy, clearly the shooter on the driver’s side of Chaney’s car, through a significant
portion of the day and showed appellant with firearms in the stolen Kia used in the
shooting. This evidence also was relevant to show preparation and planning for
shooting Chaney and robbing him. See TEX. R. EVID. 404(b)(2). Under these
circumstances, the trial court did not abuse its discretion in admitting exhibits 60 and
–14– 62 under rule 404(b). See Montgomery, 810 S.W.2d at 391; De La Paz, 279 S.W.3d
at 344. We overrule appellant’s second and third issues.
We affirm the trial court’s judgment.
/Bonnie Lee Goldstein/ BONNIE LEE GOLDSTEIN JUSTICE Do Not Publish TEX. R. APP. P. 47.2(b) 230396F.U05
–15– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT
BREYON ALEXANDER PENNY, On Appeal from the Criminal District Appellant Court No. 1, Dallas County, Texas Trial Court Cause No. F20-15502-H. No. 05-23-00396-CR V. Opinion delivered by Justice Goldstein. Justices Reichek and THE STATE OF TEXAS, Appellee Garcia participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered August 16, 2024
–16–