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. 

 
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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 
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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. 
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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 
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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 
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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 
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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. 
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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, 
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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 
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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 
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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. 
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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 
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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, 
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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 
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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. 

Do Not Publish 

TEX. R. APP. P. 47.2(b) 

230396F.U05 

 

/Bonnie Lee Goldstein/

BONNIE LEE GOLDSTEIN 

JUSTICE 
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S 

Court of Appeals 

Fifth District of Texas at Dallas 

JUDGMENT 

BREYON ALEXANDER PENNY, 

Appellant 

No. 05-23-00396-CR 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. 

Opinion delivered by Justice 

Goldstein. Justices Reichek and 

Garcia participating. 

 Based on the Court’s opinion of this date, the judgment of the trial court is 

AFFIRMED. 

Judgment entered August 16, 2024