## NO. 12

- 22

- 00106

- CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS

JACOLBE RASHAD KIRBY , APPELLANT

V.

THE STATE OF TEXAS , APPELLEE §

§

§ APPEAL FROM THE 369TH

JUDICIAL DISTRICT COURT

CHEROKEE COUNTY, TEXAS

MEMORANDUM OPINION PER CURIAM Jacolbe Rashad Kirby appeals his conviction for capital murder . Appellant’s counsel filed a brief in compliance with Anders v. California , 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967) and Gainous v. State , 436 S.W.2d 137 (Tex. Crim. App. 1969). We affirm.

B ACKGROUND Appellant was charged by indictment for capital murder. Appellant pleaded “not guilty , ” and the matter proceeded t o a jury trial. The evidence showed that Appellant was in a four

- year relationship with Ka’Deja Deck ard th at ended in the summer of 2018. The couple l ived together for approximately three of those years, and had a daughter together , who was two

- and

- a
- half years old at the time of the murder.
Deckard began dating the victim , Malcolm Hunter, roughly two weeks before this incident,
and moved in with him

. On July 19, 2018, a few days prior to Hunter’s murder, Appellant accused
Deckard of havin g a sexual relationship with Hunter and violently assaulted her at her friend’s
home. The authorities arrested Appellant a fter the incident , but he was released from jail

. B etween his release and the subsequent shooting on July 22, 2018, Appellant made several incriminating social media posts, including among others :2 Never would have thought supporting your family would hurt so much.
Just think if it was your beautiful daughter, wouldn ’ t you do the same? Okay.
How can you take care of my child if y ’ all can ’ t support yourself? Praying for my baby

.
GOING OUT WITH A BANG.
Really don’t give a FUCK.
Anyone can get it. Headed to the penitentiary.
Lord, please watch over my child

. . . her mother knows no better

. Putting my big boy belt on.
Just please take care of my child

. The most recent post w as made just a few hours before the murder. 1 At approximately 6:00 am on July 22 , three masked indivi duals forcefully kicked open the
front door to Hunter’s residence. In the living room area, Hunter and Deckard slept on a couch next to Appellant ’s and Deckard ’s young daughter. Gloria Blanton , Hunter’s mother and an elderly woman who owned the hom e , was also in the room

. She was asleep on a recliner chair while using s upplemental oxygen due to her health issues

. Komack Johnson , Blanton’s cousin, slept on the living room floor. Blanton’s two adult son s were asleep in their bedrooms to wards
the back of the home. They all awoke during the ensuing commotion. Johnson heard the three perpetrators kick in the door, and the shooter was the only one that spoke. He testified that the shooter said, “Bitch, you don’t have to worry. Somebody is going to raise my daughter.” 2 Then he shot Hunter

. Johnson , who has vi sion problems, did not affirmatively visually identify Appellant, but inferred it was him from the context in which the
statement was made. Deckard identified Appellant as the shooter on the 911 call. Deckard also stated on a responding officer’s bodycam that “Jacolbe Rashad Kirby is the only shooter, and that’s all you guys need to know.” She subsequently testified at trial that she knew Appellant was the

1 Defense counsel later argued at the trial that one interpretation of the social media posts is that Appellant knew he would go to prison for the earlier incident for assaulting Deckard as a violation of his probation , and the posts had nothing to do with publicly announcing an intent to murder Hunter.

2 The officer who interviewed Johnson testified that he never told him that, “Bitch, you don’t have to worry. Some[one] got to raise my daughter.” The officer said he would have put that in his report. But the officer did include in his report Johnson’s statement that the shooter said, “where is the motherfucker at?” Johnson claimed at trial that he relayed the full statement to the officer the day of the shooting.3 shooter because she recognized his voice, glasses, and hand. The other two assailants said nothing during the incident

. Appellant shot Hunter six times. By the time paramedics arrived a few minutes later, Hunter died. Upon receiving the 911 call identifying Appellant as the shooter, a Jacksonville patrol
officer recalled seeing Appellant driv e in the area less than an hour before the shooting. The officer knew Appellant from prior interactions with him. Realizing the significance of this information,

t he officer reviewed the camera footage from his patrol unit , which recorded Appellant driving a

w hite Jeep Cherokee at that time

. With this information and the assistance of several surveillance
cameras from local busine sses around Jacksonville , the investigating detectives were able to track Appellant’s movements from that point in time up until shortly after the shooting

. The videos showed Appellant driving towards Hunter’s residence, and park ing behind a church approximately
1 5 0

- 200 yards away from the home in a clandestine manner. A few minutes later, s hortly after the shooting, the surveillance cameras recorded the Jeep Cherokee leav ing the area. Within an hour of the shooting, without being informed that h e was a suspect or otherwise apprehended, Appellant voluntarily arrived at the Jacksonville police station in a different vehicle
to “clear his name.” 3 He waited with another officer in the intoxilyzer room

. A detective arrived shortly thereafter and in terviewed Appellant. At some point, Appellant informed the detective that he wished to terminate the interview and leave the police station. As they walked down the hall, the detective formally notified Appellant that he was detained and not free to leav e. 4 The detective knew from the inception of the interview that Appellant was identified as the shooter. Appellant told the detective that he was at home at the time of the incident, and his cousins came and told him that he needed to go to the police department to clear his name. The video timeline created by the investigators proved his alibi to be untrue.
The detective took a sample from Appellant’s hands and sent it for gunshot re sidue (GSR) analysis. The results tested positive for only one “indicative gunshot residue particle,” not a “characteristic particle , ” meaning that his hands had the presen ce of antimony and lead, but no

3 Extensive subsequent law enforcemen t efforts to locate the Jeep Appellant drove in the surveillance videos proved unfruitful.

4 Prior to trial, Appellant presented a m otion to s uppress the interview, alleging that it was a custodial interrogation, conducted without reading his Miranda warnings, and involuntary. Law enforcement admitted that it was an interrogation, but since he voluntarily appeared at the station, was told he was free to le ave , and not in custody , he was not in fact in custody as that legal term is used in this context. The trial court denied the motion.4 barium , all three of which are typically present in GSR

. The forensic chemist testified that the combination of antimony and lead, without barium, may be associated with some causes other than gunshot residue. Appellant claimed he was handling fireworks that were in his truck, explaining the powder residue. The truck was at the home of one of Appellant’s relatives

. A search of the truck revealed no fireworks or other items that would transfer those particles. The chemist

a dmitted that there would usually be more particles present from a gunshot , and that he could not conclusively say that Appellant fired a weapon ba sed solely on the sample provided. Furthermore,

a lthough there was blood on Appellant’s clothing he wore during the interview, it was tested for DNA, but did not match Hunter’s DNA. The detectives intended to send the clothing for a GSR analysis as well, but for unexplained reasons, this testing was never performed. There was conflicting testimony as to whether the three assailants wore gloves during the shooting, and the witnesses testified that they wore dark clothing , including “hoodies

. ” The video s urveillance footage shows Appellant in a white t

- shirt and blue jeans, which appeared to be the same or similar clothing he wore when he arrived at the police station. Appellant’s cellmate at the county jail , expecting a plea deal for his own infractions, contacted the authorities claiming that Appellant told him that he shot Hunter

. They gave him no
such plea deal in return for his testimony, but he nevertheless decided to testify as to Appellant’s
admissions. The reason he provided was that he wanted to see justice served because he knew
Hunter and did not believe he deserved to be killed. Defense counsel pointed out the cellmate’s extensive criminal history an d prior false denial as a “snitch” in another case

. The jury ultimately found Appellant “ guilty ” of capital murder, and the trial court sentenced him to life imprisonment without the possibility of parole. After his motion for new trial was denied, this a ppeal followed.

A NALYSIS P URSUANT TO A NDERS V
. C ALIFORNIA Appellant’s counsel filed a brief in compliance with Anders v. California and Gainous v.
State . Appellant’s counsel states that he diligently reviewed the appellate record and is of the opinion that the record reflects no reversible error and that there is no error upon which an appeal can be predicated. He further relates that he is well

- acquain ted with the facts in this case. In compliance with Anders , Gainous , and High v. State , 573 S.W.2d 807 (Tex. Crim. App. [Panel Op.] 1978), Appellant’s brief presents a chronological summation of the procedural history of the5 case and further states that A ppellant’s counsel is unable to raise any arguable issues for appeal. 5
We likewise have reviewed the record for reversible error and found none.

C ONCLUSION As required by Stafford v. State , 813 S.W.2d 503 (Tex. Crim. App. 1991), Appellant’s
counsel move d for leave to withdraw. See also In re Schulman , 252 S.W.3d 403, 407 (Tex. Crim. App. 2008) (orig. proceeding). We carried the motion for consideration with the merits. Having done so and finding no reversible error, we grant Appellant’s counsel’s moti on for leave to withdraw and affirm the trial court’s judgment. As a result of our disposition of this case, Appellant’s counsel has a duty to, within five days of the date of this opinion, send a copy of the opinion and judgment to Appellant and advise h im of his right to file a petition for discretionary
review. See T EX

. R. A PP

. P. 48.4; In re Schulman , 252 S.W.3d at 411 n.35. Should Appellant wish to seek review of this case by the Texas Court of Criminal Appeals, he must either retain an attorney to file a petition for discretionary review on his behalf or he must file a petition for discretionary review pro se. Any petition for discretionary review must be filed within thirty days from either the date of this opinion or the date that the last timely motion for rehearing was overruled by this court. See T EX

. R. A PP

. P. 68.2. Any petition for discretionary review must be filed with the Texas Court of Criminal Appeals. See T EX

. R. A PP

. P. 68.3(a). Any petition for discretionary review should comply with the requirements of Texas Rule of Appellate Procedure
68.4. See In re Schulman , 252 S.W.3d at 408 n.22. Opinion delivered September 13, 2023. Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

( DO NOT PUBLISH )

5 In compliance with Kelly v. State , Appellant’s counsel provided Appellant with a copy of the brief, notified Appellan t of his motion to withdraw as counsel, informed Appellant of his right to file a pro se response, and took concrete measures to facilitate Appellant’s review of the appellate record. See Kelly v. State , 436 S.W.3d 313, 319 (Tex. Crim. App. 2014). Appellant was given time to file his own brief. The time for filing such a brief has expired, and no pro se brief was filed.

## COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

SEPTEMBER 13, 2023

NO. 12

- 22

- 00106

- CR

JACOLBE RASHAD KIRBY , Appellant V. THE STATE OF TEXAS , Appellee

Appeal from the 369th District Court
of Cherokee County, Texas (Tr.Ct.No. 20965 ) THIS CAUSE came to be heard on the appellate record and briefs filed herein, and the same being considered, it is the opinion of this court that the re was no error in the judgment. It is therefore ORDERED, ADJUDGED and DECREED that the judgment of the court below be in all things affirmed , and that this decision be certified to the court below
for observance. By per curiam opinion

. Panel consisted of Worthen, C.J., Hoyle, J. and Neeley, J.