MARLON BRANDO SAVAGE v. THE STATE OF TEXAS (2011)

OPINION

Opinion By Justice Richter

Appellant Marlon Brando Savage pleaded not guilty to the charged offense of capital murder.   The jury acquitted him of murder, found him guilty of the lesser included offense of aggravated robbery, and assessed punishment at 25 years incarceration and a $10,000 fine.   In two issues, he complains that the evidence against him is legally and factually insufficient.   We affirm the trial court's judgment.

FACTUAL BACKGROUND

Appellant and three companions, Oren Sibley, Christopher Smallwood, and Desmond Metcalf, were driving to Arlington to meet some girls.   When Sibley said he wanted to buy some marijuana, appellant and Metcalf recommended Vincent Wesley, also known as “Vito,” as having the best marijuana in Dallas.   Wesley did not sell marijuana to people he did not know so upon arriving at the drug house, Sibley gave appellant $10 and appellant got out of the car to buy the marijuana.   Sibley also got out of the car and followed appellant to the house while Smallwood and Metcalf waited in the car.   Metcalf saw two men leaving the drug house as appellant walked toward the door.   Appellant knocked on the door and Wesley answered with a gun in his hand.   Metcalf saw Wesley and appellant “dap up,” meaning shake hands.   Then, according to Metcalf, he heard a shot and glass breaking.   Metcalf saw a man run from the house.   Next, he saw appellant running to their car.   Metcalf did not see anything in appellant's hands.   Then he saw Sibley running to the car holding two guns (his own and one taken from Wesley) and several boxes containing marijuana.   As Sibley ran, he cursed and shot at the men who had previously left the drug house.   These men were still at the scene, trying to start their car.   While trying to open the car door, Sibley dropped one box and accidentally shot the car in which he was riding, breaking the side and rear car windows.   He jumped into the car with the remaining boxes and ordered Smallwood to drive.   According to Metcalf, when Sibley got in the car he commented that he had “domed” Wesley, meaning he had shot him in the head.   Sibley also told Smallwood and Metcalf that appellant had “handled” another man in the house, meaning appellant had fought with him.   Sibley threatened to kill the others if they told what happened.   Later, when Metcalf asked appellant what had happened inside the drug house, appellant told Metcalf that when Sibley shot Wesley, he jumped on one of the other men in the house (later identified as Martin).

About a month later, Metcalf was smoking marijuana with appellant at appellant's house when Sibley, Smallwood, and Sidney Flanagan showed up at the house.   Metcalf and appellant got into their car.   Metcalf testified that Sibley was acting crazy—hitting the windshield and shooting his gun out of the car window while driving on Interstate 20.   Sibley exited the highway, drove to an isolated street, and pulled the car over.   He then pointed his gun at Metcalf and said that he knew Metcalf had been “snitching.”   Smallwood and appellant got Sibley calmed down and they drove on.   Sibley then drove to a dead-end street near a neighborhood with new construction.   Everyone got out of the car and Sibley again accused Metcalf of snitching.   Metcalf took off running toward the nearby houses.   He beat on the front door of the first house with a lit porch light but no one answered.   He heard gunshots and the sound of the car taking off so he grabbed a child's bicycle from a yard and rode through the alley until he found another occupied house.   A man answered the door with a gun in his hand but agreed to call police after Metcalf told him someone was trying to kill him.   He stayed at the house until a Grand Prairie police officer arrived.   The officer drove Metcalf back to the location where Sibley and the others had been but they were gone.   The officer then took Metcalf to jail for outstanding tickets.

Sometime after the incident in the car, Metcalf thought someone was trying to break into his house.   He ran to a corner store with a gun in his hand, demanding that the person behind the counter call the police.   When the police arrived, he told the officers that he knew about a murder.   He did not, however, tell them that he had been outside in the car when the murder occurred.   Months later, he admitted to police that he had been at the scene in the car.   He identified both appellant and Sibley in a photographic lineup.   Metcalf testified that he had previously been convicted of theft, credit card abuse, possession of a controlled substance, and evading arrest.

Ivan Mallard testified that on the day of the murder, he and two friends, Ricky Wright and Keithan Dixon, went to a house in Oak Cliff to talk to a guy about boxing.   According to Mallard, there were three men in the house at the time but he did not know them.   After they talked for about five minutes, one of the men told Mallard and his friends they had to leave.   Wright's car was parked in the driveway.   Mallard left the house and got in the back passenger seat of Wright's car.   Wright got into the driver's seat and Dixon was under the hood of the car, using a screwdriver to start the car manually.   While Mallard waited for Dixon to get the car started, he saw another car pull up.   Two black men got out of the car and walked toward the house.   He saw the two men go into the house and then heard what sounded like wrestling and a gunshot.   He then saw one of the men who had originally been in the house jump out of a window.   Dixon got the car started, closed the hood, and jumped in the car.   According to Mallard, by the time Dixon got the car door closed, one of the men who had just arrived at the house walked back outside, started shooting at Wright's car, and yelling that they had not seen anything.   Mallard testified that in their efforts to get away quickly, Wright put the car in reverse and the car stalled.   By the time they got their car started again, the other men, including the one shooting at Mallard and his friends, got in their car and drove away.   The day after the murder, Mallard talked to Detective Ibarra and gave a statement.   In his statement, Mallard stated that while he was waiting for Dixon to get the car started, two men arrived at the house in a purple Sebring with dark tinted windows.   He described the two men as black men in their twenties, one wearing a black and gold T-shirt with jeans and the other wearing all black.   Several month later, Mallard identified appellant in a photographic lineup.   However, he could not identify appellant at trial.   At trial, Mallard testified he could not remember which man shot at their car as they were trying to leave.   Mallard also testified he had prior convictions for felony possession of marijuana.

At the time of the murder, two other men—Cedric Martin and Stephen Range—were in the living room of the drug house with Wesley.   Range and Wesley had been friends since the sixth grade and Range hung out at the house, protecting Wesley's back.   Range testified that Wesley kept two boxes of marijuana and another box containing money on the fireplace mantle.   He agreed that Wesley had a .357 chrome revolver that night.   Three acquaintances, Ricky Wright, Keithan Dixon, and Ivan Mallard, were leaving the house as two other men walked up on the porch.   Range saw the first person “dap Vito up,” so he knew they were okay.   He turned to the mantle to get the marijuana but before he could even reach up to the mantle, Range claimed he was thrown face-down on the floor with a gun at the back of his head.   The person with the gun at his head kept asking him where it was at;  Range responded that he did not know what the man was talking about.   Range then heard a gunshot and thought he was dead.   When Range got up, he saw that Wesley had been shot and was lying on the floor by the front door.   Range did not see Martin but saw a hole in the window and Martin's shoe below it.   The two men who came in the front door were gone, as were the boxes of marijuana and money.   Range stated that the stolen marijuana was worth approximately $2,000.

Range told the police that the robbers were black men in their twenties.   One had dark skin;  one was bright.   One of the men had a gold grill in his mouth.   Range told police he did not know either man but thought the dark-skinned man who “dapped” the deceased had been to the house earlier in the week in a gray and red car with nice rims.   He was unable to identify either of the two robbers in a photographic lineup.   Range admitted he was serving an unrelated sentence of assault on a public servant.

Martin testified he was sitting on a chair by the window when two black men came into the drug house.   According to Martin, the first man shook hands with Wesley at the front door.   As Wesley turned, the first man shot him.   The shooter then pointed the gun at Range and put him on the ground face-down.   Martin testified that he jumped up but the second man came to the chair where Martin had been sitting, pushed him back down, and asked him where he thought he was going.   After a tussle in which Martin lost his shirt and shoes, Martin got away from the second man, dove head-first out of the window, and ran to a nearby convenience store.   As he jumped out the window, he testified that he heard more shots and thought they were shooting at him.   When he got back to the house, the police were already there.

Several months after the offense, Martin identified appellant and Sibley in photographic lineups as the two robbers.   He also identified appellant at trial.   Martin testified he did not know either of the men and could not recall which man had the gun and which man tussled with him.   However, Martin testified that the man who wrestled with him did not act scared or surprised.   Martin admitted he had smoked marijuana and used cocaine earlier that day.

Appellant testified at trial on his own behalf, claiming he was not aware Sibley intended to shoot or rob Wesley.   He also claimed he did not participate in the robbery or murder.   He testified that upon arriving at Wesley's house, he noticed there were two cars parked at the house.   As he got out of the car, Sibley gave him money to buy the marijuana.   When he knocked on the door of the house, the door opened and three men he did not know came out of the house.   Wesley was standing at the door so he greeted Wesley with a “dap” handshake.   When Wesley asked “is he with you,” he turned around and saw that Sibley had followed him to the house.   Appellant confirmed that Sibley was “with” him so Wesley let them enter the house.   Wesley shut the door and locked it.   As Wesley turned toward the mantle to get the marijuana, Sibley shot him.   Appellant testified he was surprised because he did not know Sibley had a gun.   Appellant testified that he panicked and ran toward the door but Martin was also trying to get out of the door.   Appellant admitted pushing Martin down in a chair, but said he was not trying to hurt or obstruct Martin's path.   He just wanted Martin out of his way so he could get out of the house.   Appellant testified that he had not even made it to the car when Sibley came out of the house.   Appellant heard two more gunshots so he dropped to the ground and dove into the car.   When Sibley got in the car, he waved Wesley's gun around and threatened to kill them if anyone said anything.

Appellant testified that he and Metcalf talked about going to the police but he was afraid Sibley would hurt his family.   With respect to the night that Sibley threatened to kill Metcalf for being a snitch, appellant testified that Sibley threatened his life as well.   Appellant stated he did not run away like Metcalf did because Sibley, Smallwood and Flanagan knew that if they killed him, Metcalf would go to the police.   During his police interview, appellant maintained he did not know anything about the murder and was not at the drug house when it happened.

At the scene of the shooting, the police found broken glass and marijuana in baggies on the street.   Near the deceased's body, they found a bullet casing.   Bullet fragments pulled from the deceased during the autopsy could have been fired from a .357 revolver or a 9–millimeter pistol.   The deceased died from a gunshot wound to the head.   Gunpowder marks on the deceased's skin indicated that his shooter was one to three feet away from him.   A scale in the house contained residue of what appeared to be cocaine.   There was also a powdery substance on the floor by the deceased.   None of the witnesses who were shown photographic lineups chose someone other than appellant or Sibley as one of the robbers.

DISCUSSION

Appellant complains the evidence against him is legally and factually insufficient to support his conviction for aggravated robbery.   He complains that the evidence fails to prove he was a party or conspirator to the offense, but merely reflects he was present at the scene when Sibley committed the offense.   In Brooks v. State, the court of criminal appeals held that the legal sufficiency standard of Jackson v. Virginia is now the only standard a reviewing court is to apply in determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt.   See Brooks v. State, 323 S.W.3d 893, 894–95 (Tex.Crim.App.2010) (plurality op.).   Therefore, we will address appellant's issues under the Jackson v. Virginia standard.

In reviewing a challenge to the sufficiency of the evidence, we examine all the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt.  Jackson v. Virginia, 443 U.S. 307, 318–19 (1979).   We must defer to the jury's determinations of the witnesses' credibility and the weight to be given their testimony because the jury is the sole judge of those matters.  Brooks, 323 S.W.3d at 899.

A person commits robbery if, in the course of committing theft and with intent to obtain or maintain control of property, he intentionally, knowingly, or recklessly causes bodily injury to another or intentionally or knowingly threatens or places another in fear of imminent bodily injury or death.  T ex. Penal Code Ann. § 29.02(2(a) (West 2011).   A person commits aggravated robbery if he causes serious bodily injury or uses or exhibits a deadly weapon in the course of a robbery.   Id. at § 29.03(a)(1), (2).   A firearm is a deadly weapon.  Tex. Penal Code Ann.. § 1.07(a)(17) (West 2011).

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, or both.  Tex. Penal Code Ann. § 7.01(a) (West 2011).   A person is criminally responsible for an offense committed by another if, acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense.   Id. at § 7.02(a)(2).   Evidence is sufficient to support a conviction under the law of parties when a defendant is physically present at the commission of the offense and encourages its commission either by words or other agreement.  Ransom v. State, 920 S.W.2d 288, 302 (Tex.Crim.App.1994).   In determining whether a person acted as a party, the fact finder may examine the events occurring before, during, and after the commission of the offense and may rely on the person's actions that show an understanding and common design to commit the offense.  Id.;  Christensen v. State, 240 S.W.3d 25, 31–32 (Tex.App.—Houston [1st Dist.] 2007, pet. ref'd).   Further, circumstantial evidence alone may be used to prove that a person is a party to an offense.  Powell v. State, 194 S.W.3d 503, 506 (Tex.Crim.App.2006).

A person is a conspirator under the law of parties if, in the attempt to carry out a conspiracy to commit one felony, another felony is committed by one of the conspirators.  Tex. Penal Code Ann. § 7.02(2(b).   If the felony actually committed should have been anticipated as a result of carrying out the conspiracy, then all conspirators are guilty of the felony actually committed, even if they had no intent to commit it.  Id.

Here, the evidence established that appellant suggested they purchase marijuana from Wesley.   When they arrived at the drug house, appellant went to the door and Sibley followed.   Appellant entered the house first because Wesley only sold to people he knew.   Appellant “dapped Vito up” as they went into the house.   According to the evidence, Sibley shot Wesley and put Range on the ground at gunpoint.   Appellant pushed Martin, who jumped out a window.   Appellant ran out of the house and jumped into the car.   Sibley followed with the guns, marijuana and money.

There are inconsistencies in the testimony.   Range testified the first shot occurred after he had been pushed to the floor.   However, Martin testified the shooting occurred first and then the shooter took Range to the floor.   Martin testified that the man who “dapped Vito up” was the shooter.   However, appellant testified that Sibley shot Wesley.   Martin also testified that the shooter held the gun on Range while the other man pushed him back into his chair and tussled with him.   Appellant testified that he pushed Martin but was just trying to get past him and out the door.   Despite these conflicts, none of the witnesses who viewed a photographic lineup and were able to make a positive identification chose anyone other than appellant or Sibley.   Moreover, Metcalf's version of events was largely corroborated by the testimony of other men at the scene.   The jury could have concluded that when Sibley shot Wesley and stole the marijuana and money, appellant intended to assist Sibley by holding Martin down and preventing him from leaving or retaliating against Sibley and appellant.

The discrepancies and weight to be given to the witnesses are for the jury to resolve.   Several witnesses who observed the events were under the influence of narcotics.   Several of the State's witnesses had motivation to lie due to their use immunity in the case.   Nevertheless, we must defer to the jury's credibility determinations because the jury was the sole judge of the witnesses' credibility and the weight to be given their testimony.   See Brooks, 323 S.W.3d at 899.   Viewing the evidence in the light most favorable to the verdict, we conclude it is legally sufficient to support appellant's conviction for aggravated robbery.   We overrule appellant's issues and affirm the judgment of the trial court.

MARTIN RICHTER JUSTICE