Kelvon Eugene Gray v. the State of Texas

Affirm and Opinion Filed January 26, 2023
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-21-00946-CR
KELVON EUGENE GRAY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 15th Judicial District Court
Grayson County, Texas
Trial Court Cause No. 070812
MEMORANDUM OPINION
Before Justices Molberg, Partida-Kipness, and Carlyle
Opinion by Justice Partida-Kipness
Appellant Kelvon Eugene Gray appeals his conviction for felony murder. In
one issue, Gray alleges he suffered egregious harm in the jury charge by the inclusion
of language regarding conspiracy. We affirm.
BACKGROUND
Gray was indicted for the August 24, 2017, felony murder of Tahbari Collins.
The indictment alleged Gray did “intentionally and knowingly commit or attempt to
commit an act clearly dangerous to human life by discharging a firearm at or into
the vehicle” where Collins was a passenger and where Gray was attempting to
commit the felony of Aggravated Assault with a Deadly Weapon or Deadly Conduct
by discharging a firearm. TEX. PENAL CODE § 19.02(c). Gray pleaded not guilty and
the case proceeded to trial.
By agreement at trial, the State read the deposition transcript of Collin Cross.
Cross stated as he approached mile marker fifty-three near Howe, Texas, traffic
slowed and he saw a grey car in the break-down lane where a young man was
pleading for medical help. Cross stopped to assist and saw another young man in the
passenger seat of the vehicle and a young woman trying to assist him. Cross noticed
a bullet wound to the passenger’s chest and stated the man appeared lifeless. Due to
the highway traffic, Cross said he could not approach him from the passenger side
but he attempted to assist him from the driver’s side but felt no pulse and saw no
breathing. Cross related prior to encountering the grey car, he had noticed a black
car pass him at a high rate of speed but lost sight of it as it went over an overpass.
Jesika Spencer was a passenger in the grey car Cross encountered and testified
she, Collins, and Demarcus Griffin drove from Houston, Texas to Oklahoma that
day to sell cookies for a fundraiser. Spencer said they were in Collins’s car and ended
up at a Wal-Mart near Tulsa, Oklahoma. After selling the cookies, the trio intended
on returning to Houston. According to Spencer, when they stopped at a gas station
near Tushka, Oklahoma, Griffin said he saw a “guy” he knew that might have
marijuana. At trial, Spencer identified Gray as the “guy” Griffin and Collins spoke
to about purchasing marijuana. She said Griffin and Collins spoke to Gray through
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the passenger window and Gray said he had some of his personal marijuana that he
would sell them. Gray walked to a black car, came back to their grey car, put some
marijuana in Collins’s hand, and walked off. Spencer testified that Griffin, who was
driving, “just drove off,” and as they drove away, she turned and looked at Gray who
“looked shocked and upset.” The trio stopped again to purchase a cigar to smoke the
marijuana in, and after she smoked, Spencer fell asleep in the backseat. She stated
she awoke to what she described sounded like a balloon popping, heard bullets
coming at their car, felt the car start swerving, and heard Collins say he had been
shot. When the car stopped, she climbed into the front seat to try to help Collins but
he ended up dying. Spencer admitted she did not initially tell the police about the
gas station marijuana purchase because she was afraid, but did disclose the
information to them later.
Howe Police Department Detective Keith Milks testified he was the first to
arrive to the scene and could tell Collins was already deceased. He stated all of the
windows were up on the grey car and it did not smell like a gun had been discharged
inside the car. He saw five bullet holes on the passenger side of the grey car but was
unable to locate any shell casings in the search of the surrounding area. Detective
Milks testified that three bullets entered the car: one was found embedded in the
passenger seat and two projectiles were removed during Collins’s autopsy. He also
found marijuana residue in the grey car. The bullets were submitted to the
Department of Public Safety crime lab firearms section in 2017. James Jeffress, the
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firearms section supervisor, testified he determined the bullets were fired from a .38
caliber class of handgun, which could include a “9 millimeter Luger, .357 Sig, or .38
Superauto” type gun.
Texas Department of Public Safety Ranger Reuben Mankin assisted on the
investigation and went to the Oklahoma Wal-Mart the trio had been at to attempt to
determine what had occurred. He testified that he eventually ended up at the Tushka
gas station and obtained surveillance video showing the grey car and the black car
Spencer testified about. The video showed two people enter the black car but he was
unable to identify them. Based on the video, he stated the time between when the
grey car left the Tushka gas station to when the black car left was seven minutes.
Ranger Mankin found additional video further down the road in Calera showing the
vehicles were only two minutes apart by that point. Law enforcement obtained
search warrants for cell phone tower records in the area and eventually were led to
cell phone pings from Montre Austin’s phone. A search of Facebook profiles showed
that Austin, Sekou Finley, and Gray were all friends and took a trip to Dallas around
the time of the shooting.
After placing Austin and Finley in the area and identifying Finley from the
Tushka gas station footage, law enforcement traveled to Kansas City, Missouri in
2019, and interviewed Finley and Austin. Based on information known law
enforcement obtained a search warrant for Gray’s home in Kansas City. During the
search of Gray’s home, a .9 millimeter Taurus handgun was found in a kitchen
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drawer. Law enforcement also obtained a .9 millimeter Smith and Wesson handgun
during a search of Austin’s black car. The weapons seized were submitted to the
DPS crime lab firearms section and tested by Jeffress. He explained he test-fired
both guns to compare the bullets to the ones he previously reviewed. Jeffress stated
he could not identify or eliminate the bullet jacket fragments from the Taurus
handgun, but he could eliminate the Smith and Wesson handgun as having fired the
bullets submitted. It was Jeffress’s opinion that the bullets law enforcement
submitted to him in 2017 were fired from the Taurus .9 millimeter gun.
Finley testified under subpoena from the State. He stated he had been good
friends with Gray since they were children. Finley explained that in August 2017,
he, Gray, and Austin traveled to Dallas to “party” and shop. On the way to Dallas,
Finley said he was drinking “jungle juice” and became extremely intoxicated. He
remembers stopping at the Tushka gas station where he vomited multiple times due
to his intoxication level. Finley stated he went inside the gas station and was
vomiting in the bathroom when Gray came in and told him they needed to leave.
Finley got into the passenger side of the black car and fell asleep. He testified he
does not remember the marijuana transaction, a silver car, or the shooting. Finley
explained the next thing he remembered was waking up in their Dallas Airbnb rental
the following morning, but he did not remember getting to Dallas. After he woke up,
Finley cleaned the car because of the vomit inside but did not see any shell casings.
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He was aware that Gray and Austin both had a handgun but did not know where
either of them kept their guns.
Austin also testified about their Dallas trip. He said they took his black car
and he drove the beginning portion from Kansas City. The men later changed drivers,
and Austin began drinking “jungle juice.” Austin stated he became “pretty
intoxicated,” laid down in the backseat, and fell asleep. He did not remember
stopping at the Tushka gas station or seeing a silver car. He confirmed the black car
seen in the photos was his 2012 Toyota Camry, and although there was damage in
the photographs, that damage was from different wrecks, not this incident. Austin
described waking up because he heard gunshots, sitting up, and seeing a grey car to
their left swerving. He realized the gunshots were coming from inside his car and
stated Gray was the one shooting. Austin described Gray as driving with his left hand
on the steering wheel and shooting with his right hand, across his body. Austin stated
he grabbed his gun from the center console but he never shot. The grey car Austin
saw swerving eventually stopped, but Grey continued driving. Austin relayed to the
jury the conversation he had with Gray during which Gray told him that he was
“basically robbed” of marijuana, told the grey car to pull over, and a “shootout
occurred.” After their conversation, Austin fell back asleep and woke up at the
Airbnb. He said they had to carry Finley inside because he could not walk and Finley
never woke up during the gunshots. Austin also stated Gray told him he thought he
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might have hit the passenger of the grey car. Austin testified there were no bullet
holes in his car and that he did not call or report this incident to anyone.
The jury charge contained the offenses alleged in the indictment, a law-of-
parties instruction, and language regarding conspiracy. The jury found Gray guilty
of felony murder and the trial court sentenced him to sixty years’ imprisonment. This
appeal followed.
ANALYSIS
By his sole issue, Gray alleges he was egregiously harmed because the
language of the jury charge permitted the jury to find him guilty of felony murder if
it found he committed only the lesser offense of conspiracy to commit murder.
Specifically, he complains it was error to define “conspiracy” in the abstract portion
of the jury charge and to include a “conspiracy” instruction in the application portion
of the jury charge that could have allowed the jury to consider conspiracy when
determining its verdict.
I. Standard of Review and Charge Error
The purpose of the trial court’s jury charge is to instruct the jurors on the law
applicable to the case. See TEX. CODE CRIM. PROC. art. 36.14. The charge is the
instrument with which the jury convicts; therefore, it must be an accurate statement
of the law and set out the essential elements of the offense. Fields v. State, ––
S.W.3d––, ––, No. 01-20-00280-CR, 2022 WL 3268525, at *3 (Tex. App.—
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Houston [1st Dist.] Aug. 11, 2022, pet. ref’d). A jury charge that improperly states
the law or the elements of an offense is erroneous. Id.All alleged jury-charge error must be considered on appellate review
regardless of preservation in the trial court. Kirsch v. State, 357 S.W.3d 645, 649
(Tex. Crim. App. 2012). Appellate review of purported error in a jury charge
involves a two-step process. Id. First, we determine whether the jury instructions are
erroneous. Id. Second, if error occurred, then an appellate court must analyze the
error for harm. Id. The issue of error preservation is not relevant until harm is
assessed because the degree of harm required for reversal depends on whether error
was preserved or not. Id.The failure to preserve a jury-charge error is not a bar to appellate review but
rather establishes the degree of harm necessary for reversal. Warner v. State, 245
S.W.3d 458, 461 (Tex. Crim. App. 2008). Neither the State nor the appellant bears
the burden on appeal to prove harm. Reeves v. State, 420 S.W.3d 812, 816 (Tex.
Crim. App. 2013). Harm is assessed in light of the entire jury charge, the state of the
evidence, including contested issues and the weight of the probative evidence, the
parties’ arguments, and all other relevant information in the record. Alcoser v. State,
––S.W.3d––, ––, No. PD-0166-20, 2022 WL 947580, at *3 (Tex. Crim. App. Mar.
30, 2022); Cosio v. State, 353 S.W.3d 766, 777 (Tex. Crim. App. 2011).
If the “defendant never presents a proposed jury instruction (or fails to object
to the lack of one), any potential error in the charge is reviewed only for ‘egregious
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harm’ under Almanza.” Oursbourn v. State, 259 S.W.3d 159, 174 (Tex. Crim. App.
2008) (citing Almanza v. State, 686 S.W.2d 157, 174 (Tex. Crim. App. 1985) (op.
on reh’g)). As in this case, when an “appellant d[oes] not object to the charge, the
error does not result in reversal ‘unless it was so egregious and created such harm
that appellant was denied a fair trial.’” Warner, 245 S.W.3d at 461 (quoting
Almanza, 686 S.W.2d at 171). “Errors that result in egregious harm are those that
affect the ‘very basis of the case,’ ‘deprive the defendant of a valuable right,’ or
‘vitally affect a defensive theory.’” Id. at 461–62 (quoting Hutch v. State, 922
S.W.2d 166, 171 (Tex. Crim. App. 1996)). To establish egregious harm, the
“appellant must have suffered actual, rather than theoretical, harm.” Id. at 461.
II. There was no Egregious Harm in the Jury Charge
Gray did not object to the charge of the court, so egregious harm must be
found in order to sustain his issue. In order to determine if there was jury charge
error, we first must determine if it was error to include the language regarding
conspiracy in the jury charge. See Kirsch, 357 S.W.3d at 649. The State argues that
the language regarding conspiracy was included in the charge as alternative law-of-
parties language. There was testimony presented that the black car Gray occupied
contained two other individuals, one of which admitted to having a gun in the car.
Such evidence supports a finding that the jury could have believed Gray did not act
alone in shooting the grey car and killing Collins. Therefore, it was not error to
include language allowing the jury to find Gray guilty using a law-of-parties
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determination. However, assuming without deciding it was error to include the
language regarding conspiracy, we will look to see if the complained-of language
was egregiously harmful.
In order to determine if any harm was egregious, we look at the entire jury
charge, the state of the evidence, including contested issues and the weight of the
probative evidence, the parties’ arguments, and all other relevant information in the
record. Alcoser, 2022 WL 947580, at *3. The charge laid out the definitions for
felony murder, aggravated assault, and deadly conduct. Next, it instructed the jury
on the law of parties. See TEX. PENAL CODE §§ 7.01, 7.02. It also included a
definition for conspiracy. See id. § 15.02. The charge stated:
A person is criminally responsible as a party to an offense if the offense
is committed by his conduct, by the conduct of another for which he is
criminally responsible for, or by both.
Each party to an offense may be charged with the commission of the
offense.
If, in an attempt to carry out a conspiracy to commit one felony, another
felony is committed by one of the conspirators, all conspirators are
guilty of the felony actually committed, though having no intent to
commit it, if the offense was committed in the furtherance of the
unlawful purpose and was one that should have been anticipated as a
result of the carrying out of the conspiracy.
A conspiracy is committed if, with intent that a felony be committed, a
person agrees with one or more persons that they or one or more of
them engage in conduct that would constitute the offense and he or
more of them performs an overt act in pursuance of the agreement. An
agreement constituting a conspiracy may be inferred from the acts of
the parties.
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Now, if you find from the evidence beyond a reasonable doubt that on
or about August 24, 2017, in Grayson County, Texas, the defendant
Kelvon Eugene Gray did intentionally or knowingly commit or attempt
to commit an act clearly dangerous to human life, namely, discharging
a firearm at or into the vehicle in which Tahbari Collins was then and
there situated, that caused the death of Tahbari Collins, and the
defendant was then and there in the course of intentionally or
knowingly committing a felony, namely Aggravated Assault with
[D]eadly Weapon or Deadly Conduct - Discharge Firearm, and the
death of Tahbari Collins was caused while the defendant was in the
course of and in furtherance of, or in immediate flight from the
commission or attempt of the felony; or,
If you find from the evidence beyond a reasonable doubt that the
defendant Kelvon Eugene Gray entered into a conspiracy with Montrae
Austin or Sekou Finley to commit the felony offense of Aggravated
Assault-Deadly Weapon or Deadly [C]onduct-Discharge Firearm and
that on or about August 24, 2017, in Grayson County, Texas, in the
attempt to carry out this agreement, if any, Montrae Austin or Sekou
Finley did commit an overt act of arming himself with a firearm, and
shooting a firearm into the motor vehicle in which Tahbari Collins was
situated, and the said Montrae Austin or Sekou Finley did then and there
intentionally or knowingly commit or attempt to commit an act clearly
dangerous to human life, namely, shooting into a motor vehicle on
which Tahbari Collins was situated that caused the death of Tahbari
Collins, and the said Montrae Austin or Sekou Finley was then and
there in the course of committing a felony, namely Aggravated Assault–
Deadly Weapon or Deadly Conduct–Discharge Firearm, and the death
of Tahbari Collins was caused while the said Montrae Austin or Sekou
Finley was in the course of and in furtherance of or in immediate flight
from the commission or attempted commission of said felony, and you
further find beyond a reasonable doubt, that the shooting death of
Tahbari Collins [Judge’s initials] was committed in furtherance of the
unlawful purpose of the conspiracy to commit Aggravated Assault or
Deadly Conduct and was an offense that should have been anticipated
by the defendant, Kelvon Eugene Gray, as the result of carrying out the
agreement;
....
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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 for, or by both. Mere presence alone,
however, will not constitute one a party to an offense.
The law-of-parties instruction may be included in the charge if evidence has
been presented at trial to support the theory. Marable v. State, 85 S.W.3d 287, 288
(Tex. Crim. App. 2002) (“[I]t is well-settled that the law of parties need not be pled
in the indictment.”). This is true even if the indictment alleges only the defendant
acted as a principal actor. Id. To determine whether the evidence supports the
submission of the instruction, the trial court may consider evidence of events that
occurred before, during, or after the commission of the crime. Ryser v. State, 453
S.W.3d 17, 28 (Tex. App.—Houston [1st Dist.] 2014, pet. ref’d). Submission of one
theory does not prohibit the submission of another theory. Id. “Even if there is
‘strong’ evidence to support a conviction of a defendant under the theory that he was
the principal actor, so long as there also is evidence that would support the alternate
theory that he acted as a party to the offense, the prosecution may submit both
theories and the trial court may include a jury instruction on the law of parties. Goff
v. State, 931 S.W.2d 537, 544 (Tex. Crim. App. 1996). When “the evidence clearly
supports a defendant’s guilt as a principal actor, any error of the trial court in
charging on the law of parties is harmless.” Ladd v. State, 3 S.W.3d 547, 564–65
(Tex. Crim. App. 1999) (quoting Black v. State, 723 S.W.2d 674, 675 (Tex. Crim.
App. 1986)).
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Gray argues that “conspiracy is not a lesser-included offense of murder,” and
it is a “separate and distinct offense” that was not contained in the indictment. He
states the inclusion of the instructions regarding conspiracy “permitted the jury to
convict [Gray] for a crime different from that described in the indictment.” In
Montoya v. State, the court of criminal appeals addressed a similar argument:
Montoya argued,
The inclusion of the theory of conspiracy in the court’s charge . . .
constituted fundamental error because the offense of conspiracy had not
been alleged in the indictment . . . and since he had no notice he was
being charged with the offense of criminal conspiracy, the jury was
erroneously instructed on an alternate theory of conviction.
[Montoya was] mistaken in his argument. The court’s charge did not
instruct the jury to consider whether appellant was guilty of the separate
offense of criminal conspiracy as set out in Section 15.02. Rather the
court’s charge merely contained an alternative “parties” charge as
provided in [penal code § 7.02(b)].
810 S.W.2d 160, 165 (Tex. Crim. App. 1989); see also Gilmore v. State, 397 S.W.3d
226, 245 (Tex. App.—Fort Worth 2012, pet ref’d). The same analysis applies here.
The jury charge did not permit the jury to convict Gray of conspiracy to commit
felony murder. The conspiracy language was an alternate law-of-parties instruction
included due to the testimony presented by Austin and Finley. It was not egregious
error to include a law-of-parties instruction or include the conspiracy language as an
alternative law-of-parties instruction in the jury charge.
Next, we must evaluate the state of the evidence. Gray argues the jury could
have found him guilty of only conspiracy, although it was not alleged in the
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indictment. However, to accept that argument, would require the jury to completely
disregard the evidence presented. Spencer testified she saw Gray interacting with
Collins and Griffin. Gray’s handgun matched the bullets submitted to the crime lab.
Austin testified he saw Gray shooting at the grey car while driving Austin’s black
car. Austin also admitted to having a firearm, grabbing when he awoke to gunshots,
but never firing it. The Tushka gas station surveillance shows Gray and Finley inside
the store, Gray speaking to people in a grey car, and Gray making or receiving a
phone call while at the gas station. Finley testified to be extremely intoxicated and
throwing up at Tushka, stating he did not see a grey car, and explaining he fell asleep
in the car, only to wake up the following morning in Dallas. Based on the evidence
presented, the jury could have reasonably believed Gray was the primary actor in the
shooting that caused Collins’s death. The law-of-parties instructions was most likely
unnecessary, but it was not egregious error to include it.
Third, we evaluate the arguments of the parties. The State referenced and
explained conspiracy during its closing argument four different times, even stating
to the jury,
How would [Finley] or [Austin] know that this silver car right here is
full of people that stiffed us on a marijuana deal and need to be shot if
[Gray] didn't point it out to them, tell them about it, and give them his
gun? And if that is what you think happened, because we know [Gray’s]
gun is the murder weapon, that is a conspiracy to commit aggravated
assault or deadly conduct, it is in furtherance of the conspiracy, and
[Gray] should have anticipated what was going to happen.
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Although conspiracy is referenced in the State’s closing argument, the arguments
still fit under the law-of-parties instruction and conspiracy was included as an
alternative means to describe law-of-parties. The arguments were not egregiously
harmful.
Finally, we evaluate any other relevant information. Gray argued in closing
that Finley and Austin had reasons to point the blame at him and gain favor with the
State, as they were not charged in the shooting. However, even if both witnesses
changed parts of the story to place blame on Gray, under the law-of-parties, the jury
could have reasonably still found him guilty of felony murder. Gray’s argument does
not show egregious harm in the inclusion of the alternative party language.
Gray has not shown that he suffered any actual harm as required under an
egregious harm standard. All the evidence presented to the jury showed Gray to be
the main participant in the situation involving the occupants of the grey car, which
led to Collins’s death. The jury charge contained no error and Gray fails to show
how he was egregiously harmed by the complained-of language. We overrule Gray’s
sole issue.
CONCLUSION
Under this record, we conclude the inclusion of the conspiracy language as an
alternate law-of-parties instruction was proper and the jury charge did not allow for
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a conviction on conspiracy to commit murder. Gray has not shown egregious and
actual harm. We overrule his sole issue and affirm the judgment of the trial court.
/Robbie Partida-Kipness/
ROBBIE PARTIDA-KIPNESS
JUSTICE
Do Not Publish
TEX. R. APP. P. 47.2(b).
210946F.U05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
KELVON EUGENE GRAY, On Appeal from the 15th Judicial
Appellant District Court, Grayson County,
Texas
No. 05-21-00946-CR V. Trial Court Cause No. 070812.
Opinion delivered by Justice Partida-
THE STATE OF TEXAS, Appellee Kipness. Justices Molberg and
Carlyle participating.
Based on the Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.
Judgment entered this 26th day of January 2023.
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