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Court of Appeals of Texas, Fifth District, DallasMar 16, 2011
No. 05-09-00541-CR (Tex. App. Mar. 16, 2011)

No. 05-09-00541-CR

Opinion issued March 16, 2011. DO NOT PUBLISH. Tex. R. App. P. 47.

On Appeal from the 195th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F08-50213-N.

Before Justices MORRIS, MOSELEY, and MYERS.


A jury convicted Oren William Sibley of capital murder. He now complains in a single point of error that the evidence against him is legally insufficient. We affirm the trial court's judgment.

Appellant initially challenged the factual sufficiency of the evidence against him in his brief on appeal. After the issuance of Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010), we permitted appellant to file a supplemental brief challenging the legal sufficiency of the evidence in light of the holding in Brooks.

Factual Background

One of appellant's associates, Desmond Metcalf, traveled with appellant, Marlon Savage, and Chris Smallwood to buy some marijuana from the deceased at a drug house familiar to Metcalf and Savage. According to Metcalf, they were in a blue, round-body Chevrolet Caprice. Smallwood was driving, and appellant was sitting in the front passenger seat. Metcalf and Savage were seated in the back. When they got there, Smallwood and Metcalf stayed in the car and waited for appellant and Savage to buy from the deceased, a man Metcalf knew and liked. Metcalf saw two men leave the house as appellant and Savage went inside. Then, according to Metcalf, he heard a gunshot and glass breaking. Metcalf saw someone running from the house and trying to start a car. Next, he saw Savage running to their car. Then he saw appellant running to the car holding two guns, including a .357 Magnum that belonged to the deceased, and boxes in his hands. As appellant ran, he cursed and shot at the other men still at the scene trying to start their car. Appellant dropped one box but jumped into the back seat of the car with two boxes and ordered Smallwood to drive. According to Metcalf, appellant commented that he had "domed" the deceased, which meant that he had shot him in the head. Metcalf began crying and appellant, Metcalf claimed, asked Metcalf if he was friends with the deceased. Then the group drove to a woman's house in Arlington. On the way, appellant threatened Metcalf that if he told anyone what had happened, he would kill him. According to Metcalf, appellant told him that when he and Savage went in the drug house, Savage gave the deceased a "dap" handshake and confirmed that appellant was "with" him. Then appellant shot the deceased with his nine-millimeter pistol. Metcalf told a couple of people about the murder, including appellant's best friend, Sidney Flanagan. One night approximately a month later, Metcalf was smoking marijuana with Savage at Savage's house when appellant and Flanagan insisted on taking Metcalf home in appellant's white Nissan Altima. Metcalf, Smallwood, and Flanagan all got into the car. Appellant then drove opposite the direction of Metcalf's house. He had a gun on his lap, and Smallwood also had a gun. He exited off of Interstate 360 between Mansfield and Grand Prairie on an isolated two-lane street where there was "nothing but field." Appellant pulled over the car and poked Metcalf with his elbow. Then he pointed his gun at Metcalf, remarking that he knew Metcalf had been "snitching." Metcalf testified that he jumped out of the car, saying that if he had actually been snitching, they would be in jail. Smallwood tried to calm appellant, then appellant told Metcalf he was not going to kill him. He took all the bullets out of his gun and the other gun and threw the guns in the back seat of the car, telling Metcalf to get back inside. Metcalf got in the car and tried to convince appellant to drive him to a gas station or other public place where there would be witnesses to appellant's actions. Next, according to Metcalf, appellant drove to a dead-end street near a neighborhood with new construction. Everyone got out of the car, and appellant began accusing Metcalf of snitching again, saying that he was going to have to kill him. Metcalf could see Flanagan loading a .357 revolver inside the car. Metcalf took off running toward the neighborhood. He beat on the front door of the first house he saw with a porch light on. No one answered the door. He heard gunshots and the sound of the car taking off to find him. Then he grabbed a child's bike from a yard and rode the bike through the alley until he found another house. A man answered with a 12-gauge shotgun in his hand. The man 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. Then, according to Metcalf, he told the officer he knew of someone who had murdered a man. The officer drove him back to the location where appellant had been. Then he took him to jail for some outstanding tickets. Metcalf spent the night in the Grand Prairie jail, then he got out and went home. A Grand Prairie police officer acknowledged responding to a 911 call where Metcalf had been beating on doors in a neighborhood asking for people to call the police. The officer related that Metcalf had told him a man the officer understood to be "Sidney" had threatened to kill him. The officer confirmed that he had driven Metcalf to the dead-end road he had described and then taken him to jail for outstanding traffic tickets. The officer testified that Metcalf had said there were two other people in the car in addition to "Sidney" and himself. Metcalf also told the officer they had been in a white Buick LeSabre. When confronted with this testimony, Metcalf said that he "probably got the car confused." According to the officer, Metcalf said nothing about witnessing a murder in Dallas. Flanagan testified that the incident in appellant's car never happened. Flanagan admitted he had previously been convicted of burglary of a building. Sometime after the incident in the car, when Metcalf thought some people were trying to break into his house, he ran to a corner store shirtless with a gun in his hand, demanding that the person behind the counter call the police. When they arrived, he told the officers that he knew about a murder. He did not, however, tell them at that time 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 Savage in a photographic lineup. Metcalf testified that he knew appellant to wear a gold "grill" mouthpiece with diamond chips in it. Metcalf admitted that he had been previously convicted of assault, credit card abuse, possession of a controlled substance, and evading arrest. He stated that had not had a job since a couple of months before the shooting. Other men were with the deceased while he was selling marijuana and when he was shot. Ricky Wright testified that he was at the house with a man he called "Lurch" and Keithan Dixon selling cocaine while the deceased sold marijuana. He had driven the group to the house in his 1978 Ford LTD, a white car with a green top. They also saw "Little Steve" and "Little Ced" at the house, selling marijuana with the deceased. Wright and his group left after approximately thirty minutes. As they were walking out of the door, they saw two men walking in. Wright did not recognize the men, and he testified he "didn't pay much attention" to them. Wright's car had to be started manually, so Wright was in the driver's seat and Dixon was under the hood when they heard two to three gunshots ring out from the house. Wright knew the deceased carried a .357 caliber handgun, and he suspected that the deceased had shot one of the men who had just gone inside. Then he saw "Little Ced" jump through a window of the house. Dixon closed the car's hood and got into the car. Afterward, Wright said, he saw the men who had just gone inside the house running out to their car carrying the shoe boxes the deceased used to store his marijuana. One of the men shot at Wright's car as they left the house, telling his group they "ain't seen nothing." One of the shots hit Wright's car. Wright hit the gas, and they ended up in the yard of the house across the street. He saw the shooter get into a car parked on the street and drive away. Wright then went inside the drug house and found the deceased dead at the front door. After leaving the scene, he did not contact police because he was afraid. Eventually, he gave a statement to police at the urging of a man named "Big Friday," who owned the drug house. In his statement, he described the two men involved in the shooting as tall and weighing 180 to 200 pounds. He stated that one of the two black men was "bright skinned wearing all black" and the other was "dark-skinned with a bald fade." He did not notice whether either of the men had a grill. At trial, Wright identified appellant as the "bright dude" he saw go into the house before the deceased was killed. Wright admitted that he had previously been convicted of theft, unlawful use of a motor vehicle, and failure to identify. Ivan Mallard, also known as "Lurch," confirmed Wright's version of events from the night of the shooting. Mallard testified that he is six feet, five inches tall and weighs approximately 280 pounds. He described the two men who entered the drug house as his group was leaving as black males, one wearing a gold and black shirt with jeans and the other wearing black. He stated that the two men were smaller than he is. Several months after the offense, he identified Savage in a photographic lineup. In a statement to police and at trial, Mallard said that the two men involved in the shooting had arrived in a purple Chrysler Sebring with dark tinted windows. Mallard admitted he had previously been convicted of theft, unlawful carrying of a weapon, evading arrest, burglary of a vehicle, burglary of a habitation, and possession of marijuana. Stephen Range testified that he and "Little Ced" were helping the deceased sell marijuana on the night of the offense. He agreed that the deceased had a .357 revolver that night. He and Mallard (whom he knew as Lurch) discussed boxing. Afterward, as Mallard and men he had arrived with were leaving the drug house, two other men approached the front door. The deceased told Range that the men coming to the front door would be wanting a certain bag size of marijuana, so Range went to get it. The first man gave the deceased a type of handshake known as a "dap," and Range recognized the man as having been to the house earlier in the week in a gray and red car with spinning rims. He believed the car was not a Chevrolet Caprice, but was possibly a Grand Marquis or Crown Victoria. He did not see the car at the house that night. As he reached for the marijuana on the mantel, Range claimed, he was thrown to the ground with a pistol to the back of his head. He stated that he did not get a good look at the person with the gun to his head. Range thought it was the person who had "dapped" the deceased. He asked Range where the purse was; Range responded that he did not know what the man was talking about. Range then heard a gunshot, figured out that he was not shot, got up from the ground, and found the deceased's body. Afterward, he spoke to a neighbor from across the street who was a nurse. The nurse confirmed that the deceased was no longer alive. Range stated that the stolen marijuana was worth approximately $2,000. Range told police the man who shot the deceased was black and slim with dark skin, a bald fade hairdo, tattoos, and a gold grill with diamonds. He stated that the man was approximately twenty-three years old and six feet tall with brown skin. He told police the other man was approximately twenty-five years old, "bright" complected, bigger than the shooter, with some type of mini afro and a braid on top of his head. He believed the man was approximately six feet, one inch tall and weighed about 230 pounds. Range was unable to identify either of the two robbers in a photographic lineup. He thought that the shooter was wearing a red t-shirt and the other man was wearing a bluish, blackish jacket. In his recollection, both men were wearing jeans. He denied that cocaine was being sold at the house and claimed that only marijuana was sold there. According to Range, he was at the scene because he was the deceased's security. He claimed that no one at the house was smoking marijuana that night. Range admitted he was serving an unrelated sentence of assault on a public servant. He had also received deferred adjudication for a previous theft. Cedric Martin testified that he was the man who jumped out the window when the deceased was shot. Martin had been with Range and the deceased when two men came into the house. One of the men gave the deceased a handshake at the front door, then when the deceased turned around to get a sack of marijuana, the man shot him in the head. According to Martin, the same man then ran to Range and put him on the ground at gunpoint. The other man began wrestling with Martin until Martin jumped out the window. Martin stated that he had never seen the two men before. Martin stated that the deceased usually carried a .357, but he could not recall whether he had the gun that night. He stated that the deceased had been shot with an automatic weapon, not a revolver like the deceased's .357. Martin testified that he and the other men had smoked marijuana and used cocaine in the house before the deceased was shot. He had purchased the cocaine from one of the two men who had preceded the shooter's arrival at the house. He did not, however, recall seeing a man matching Lurch's description at the house before the shooting. Several months after the offense, Martin identified appellant and Savage in photographic lineups as the two robbers. He tentatively identified appellant at trial as well. Martin testified on cross-examination that when he was looking at the photographic lineups, the detective assisting him told him to "[b]e real," which he took to mean "he thought I knew who did it." The officer denied saying this. Martin admitted that he had been convicted of theft in the past. He testified that the drug house was owned by a man named Big Friday, whom he believed was the deceased's uncle. Jonathan Givens testified that months after the shooting, he was coming home from a club with appellant. Appellant asked Givens if he had ever killed anybody. When Givens said no, appellant advised him, "[O]nce you do it, you'll forget about it. You'll have nightmares but then you'll forget about it." When Givens asked appellant what he was talking about, appellant told him he went to south Dallas to "hit a lick" and shot a person in the face with a .357 at his front door. At the time of appellant's arrest, a police officer found a chrome .357 revolver under the driver's seat of his car. Appellant told Givens he was with Smallwood at the time of the murder. Givens admitted he had previously been convicted of felony escape. He further admitted that in exchange for his testimony against appellant, he was going to receive a five-year sentence for a pending attempted capital murder case against him in Tarrant County. In addition, witnesses Wright, Range, Martin, and Metcalf were all granted "use immunity" for their associated offenses from the night of the shooting in exchange for their testimony against appellant. The nurse who had checked on the deceased after the shooting testified for the defense. Mildred Yolanda Hartfield testified that in the early morning hours, her oldest daughter woke her to ask her about a "pop" she heard. Hartfield looked out her window and saw a white "old, old Cadillac" with a black top in her yard. She saw three men running to the car; one of the men said to hurry and get in. She described the third man as "heavy set" and "really big." She said she saw the man trying to put something in the back of the car. Hartfield estimated that the man was six feet tall and weighed 300 pounds. She claimed she did not see anyone else outside. Appellant's mother and his girlfriend both testified that he and the girlfriend were living at his mother's house with their young infant at the time of the offense. They further claimed he had a midnight curfew at the time, which he never broke, so he must have been home with them and the baby at the time the murder occurred. They claimed that at the time of the offense appellant owned an older model BMW and did not get a white Nissan Altima until more than two months after the shooting. Appellant's mother testified that appellant did not wear any type of grill on his teeth at the time of the offense. A defense expert in forensic psychology testified that in a six-pack lineup, there is a "very strong tendency for all of us to pick one of the six that is shown" and to pick "the one that most closely matches the . . . person that we think did it, not necessarily picking the person who did it." The expert noted that in 1999 the U.S. Department of Justice published a manual on eyewitness evidence that recommended abandoning six-pack lineups in favor of sequential lineups conducted in a blind manner, in other words, photographs shown one by one and asking for a yes or no to each and conducted by an investigator who does not have knowledge of the case. One of the investigating officers testified that the Dallas Police Department had recently changed its photographic lineup policy to mandate blind sequential lineups, rather than the six-pack lineups that were used in appellant's case. At the scene of the shooting, police found glass and marijuana in baggies on the street. Near the deceased's body, they found a 9-millimeter 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 had 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 torn baggie of what appeared to be cocaine found under the deceased. None of the witnesses who were shown photographic lineups chose someone other than appellant or Savage as one of the robbers.


In his sole point of error, appellant complains the evidence against him is legally insufficient to support his capital murder conviction. He complains in particular that no physical evidence connected him to the crime and the witnesses' accounts are not credible due to their motivations to lie and the conflicts between their versions of events. The court of criminal appeals held in Brooks v. State that the legal-sufficiency standard of Jackson v. Virginia, 443 U.S. 307 (1979), is now "the only standard that a reviewing court should apply in determining whether evidence is sufficient to support each element of a criminal offense." Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010). In reviewing a challenge to the legal sufficiency of the evidence, we examine the evidence to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex. Crim. App. 2005). We review all the evidence in the light most favorable to the verdict and assume the trier of fact resolved conflicts in the testimony, weighed the evidence, and drew reasonable inferences in a manner that supports the verdict. See Rollerson v. State, 227 S.W.3d 718, 724 (Tex. Crim. App. 2007). Here, although the evidence conflicts regarding a variety of issues including what car the shooter left the scene in, what drugs were consumed and sold that night, and whether appellant threatened Metcalf on a car ride after the offense, none of the witnesses who viewed a photographic lineup and were able to make a positive identification chose anyone other than appellant or Savage. Moreover, Metcalf's version of events was largely corroborated by the testimony of other men at the scene with the deceased. And despite the fact that several of the State's witnesses had motivations to lie due to their use immunity in the case, we must defer to the jury's credibility determination because it was the sole judge of the witnesses' credibility and the weight to be given their testimony. See Brooks, 823 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 capital murder. We overrule appellant's sole point of error.