Mateo Benitez v. The State of Texas--Appeal from 145th District Court of Nacogdoches County

OPINION HEADING PER CUR

NO. 12-04-00156-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

MATEO BENITEZ, APPEAL FROM THE 145TH

APPELLANT

V. JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE NACOGDOCHES COUNTY, TEXAS

 

MEMORANDUM OPINION

 

Mateo Benitez appeals his conviction for engaging in organized criminal activity, for which he was sentenced to imprisonment for thirty-five years. Appellant raises two issues on appeal. We affirm.

Background

Appellant was indicted on two counts of engaging in organized criminal activity. See Tex. Pen. Code Ann. 71.02(a)(1) (Vernon 2003). According to the Nacogdoches Police Department, Appellant was a member of the Latin Kings, a nationwide gang governed by a written document, the Latin King Manifesto.

Robert Killingsworth, a detective with the Nacogdoches Police Department, testified that the Latin Kings were identified as a criminal street gang in Texas in 1998. He stated that the Latin Kings were organized with a military style hierarchy, including a statewide leader, a regional leader, and local chapters. He testified that the local chapter in Nacogdoches on December 17, 2002 had approximately thirty-six gang members.

 

Killingsworth also testified that the Barrios Trese gang or Southside Thirteen, a Nacogdoches gang, is a rival to the Latin Kings. This gang was formed as a defensive mechanism to the Latin Kings. According to Killingsworth, its members spend a lot of time showing disrespect toward the Latin Kings.

On December 17, 2002, Appellant drove his red car to a house at 115 East Smith Street where members of the Southside Thirteen gang lived. He indicated to one of the Southside Thirteen members, Louis Zarate, that he wanted to fight him. As this confrontation between Appellant and Zarete began to escalate, Rafael Hernandez threw a brick through a window of Appellant s car. Appellant stated that this ain t going to stay like this. Paul Gonzalez ( Paul ), one of the Southside Thirteen gang members who witnessed these events, testified that he believed Appellant s statement meant that he planned to return in response to these actions.

Thomas Gonzalez ( Thomas ) was also a member of Latin Kings in Nacogdoches at that time. He was summoned on the evening of December 17 to the home of fellow gang member Ivan Coulston. Thomas met Appellant, Coulston, and another Latin King named Chino. 1 Thomas testified that, after this initial meeting, he went home to gather guns to give to Appellant, Coulston, and Chino. He stated that he remembered Chino taking a .9 millimeter and Appellant taking a .45 automatic and a .380 automatic. Thomas gave Coulston an SKS rifle. Thomas also provided Appellant with a pair of blue gloves. Then he drove the three to the Lone Star employee parking lot. According to Thomas, Appellant, Coulston, and Chino left his vehicle and went up a wooded hill facing south from the house at 115 East Smith Street.

Around 9:00 o clock on December 17, individuals at 115 East Smith Street threw beer bottles at a passing red automobile that they mistakenly believed to be Appellant s. After a 9-1-1 call to the Nacogdoches Police Department, Officer Robert Mobley was dispatched to 115 East Smith Street. Mobley directed the individuals at the house to clean up the broken beer bottles on the road. However, he did not arrest anyone. Mobley testified that he remained on patrol in the area. Around 10:30, he noticed some movement in a wooded area on the hill directly across from 115 East Smith Street. Mobley said this movement caught his attention because it was a peculiar activity for an area with no houses or businesses. At that point, he heard several gun shots and saw muzzle blasts coming from the top of the hill.2 Mobley stated that these shots came from at least two firearms and one was clearly closer to him. He immediately called for police backup on his radio and drove toward the Lone Star employee parking lot. In the parking lot, Mobley observed a gold Ford Aerostar van parked near the woods. He testified that he saw two, possibly three, subjects coming out of the woods running toward the van. Mobley identified two of them as Hispanic males.

Mobley testified that he got out of his police car, identified himself as a peace officer, and advised the three subjects to stop and get on the ground. According to Mobley, the three subjects turned around and went back into the woods. However, Thomas, the driver of the van, got out of the van and laid down on the ground as Mobley instructed. At this time, police backup arrived to assist Mobley in securing Thomas and the van.

Nacogdoches police officer Jeff Luman also responded to Officer Mobley s call for help. As he arrived in the vicinity of the shooting, he encountered two men walking down the street. Luman determined that these two men were not suspects, but they recounted the earlier confrontation between Appellant and the occupants of 115 East Smith Street. The two men, unidentified in the record, gave Luman the address of Appellant s former home on South Fredonia. Luman went to the South Fredonia house and found a red Jeep Cherokee parked on the grass behind the house. Coulston was found hiding in the vehicle.

The next day, December 18, Troy Mach, a Nacogdoches police detective, testified that he followed the trail up the hill where the persons were believed to have been shooting. Mach testified that he found two firearms, a .45 automatic and a .380 automatic, laying on top of each other in a small ditch beside the trail. He also testified that he found a pair of blue gloves in the bushes at the corner of Smith and South streets. Jerry Stone, a technical services officer for the Nacogdoches Police Department, testified that he found six Winchester .45 casings on top of the hill, south of 115 East Smith Street. Russell Johnson, a Department of Public Safety firearms examiner, testified that the .45 fired the six shots for the spent casings. Stone testified that the .380 had been fired, but that the shell casings were jammed in the gun. No spent .380 shell casings were found. Marcus Madden, a patrol officer for the Nacogdoches Police Department, testified that on February 2, 2003, an SKS rifle was found on the hill.3

Dominga ( Dominga ) Gonzalez testified that she was shot in the chest during the shooting. Her boyfriend, Hernandez, testified that he was shot in the foot at the same time. Paul testified that, at the time of the shooting, he took cover under a van. After the shooting stopped, he chased the shooters. Paul recognized Appellant because of the way he ran and because he was wearing the same clothes as he had worn earlier in the day. Paul also said that he had played soccer with Appellant since he was ten years old and recognized Appellant s run.4 According to Paul, there was enough light that he recognized Appellant s face when Appellant turned around to look at him. Paul did not continue chasing Appellant because the police arrived.

The jury found Appellant guilty of two counts of engaging in organized criminal activity as charged in the indictment and assessed punishment at thirty-five years of imprisonment. Appellant timely filed this appeal.

Sufficiency of the Evidence

In his first issue, Appellant challenges the sufficiency of the evidence to support the jury s finding that he was engaged in organized criminal activity. Appellant specifically contends that no witness actually saw Appellant participate in the shooting and that his mere presence at the scene of the alleged offense is not sufficient to sustain a conviction. Appellant did not specifically state whether he was challenging legal sufficiency, factual sufficiency, or both. Therefore, we will treat this issue as a challenge to both the legal and the factual sufficiency of the evidence.

Standard of Review

In reviewing a challenge to the legal sufficiency of the evidence, we review the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979); Young v. State, 14 S.W.3d 748, 753 (Tex. Crim. App. 2000). In reviewing the evidence for legal sufficiency, an appellate court does not reweigh the evidence or substitute its judgment for that of the jury. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). The jury is the exclusive judge of (1) the facts; (2) the credibility of the witnesses; and (3) the weight to be given to the testimony of each witness. Penagraph v. State, 623 S.W.2d 341, 343 (Tex. Crim. App. 1981). As factfinder, a jury may reject any, all, or part of a witness s testimony. See id.

In conducting a factual sufficiency review, an appellate court must review all of the evidence but not in the light most favorable to the prosecution. Johnson v. State, 23 S.W.3d 1, 7-8 (Tex. Crim. App. 2000). We must determine whether a neutral review of all the evidence, both for and against the challenged finding, demonstrates that a rational jury could have found guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004). Evidence is factually insufficient when evidence supporting the verdict, considered by itself, is too weak to support the finding of guilt beyond a reasonable doubt. Id. Evidence is also factually insufficient when contrary evidence is so strong that the beyond a reasonable doubt burden of proof could not have been met. Id. at 484-85. Our evaluation should not intrude upon the factfinder s role as the sole judge of the weight and credibility given to any witness s testimony. Cain v. State, 958 S.W.2d 404, 407 & n.5 (Tex. Crim. App. 1997).

Applicable Law

 

A person commits an offense if, with the intent to establish, maintain, or participate in a combination or in the profits of a combination or as a member of a criminal street gang, he commits or conspires to commit one or more enumerated offenses, one of which is aggravated assault. Tex. Pen. Code Ann. 71.02(a)(1) (Vernon 2003). Combination means three or more persons who collaborate in carrying on criminal activities. Id. 71.01(a). Criminal street gang means three or more persons having a common identifying sign or symbol or an identifiable leadership who continuously or regularly associate in the commission of criminal activities. Id. 71.01(d). Conspires to commit means that 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 that person or one or more of them perform an overt act in pursuance of the agreement. Id. 71.01(b).

The two count indictment against Appellant specifically alleged aggravated assaults against Dominga and Hernandez. First, there must be an assault. An assault occurs when one intentionally, knowingly, or recklessly causes bodily injury to another. Tex. Pen. Code Ann. 22.01(a)(1) (Vernon 2003). An assault becomes aggravated upon proof of either one of two contingencies. An assault is aggravated if the person causes serious bodily injury to another. Id. 22.02(a)(1). Serious bodily injury is bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ. Id. 1.07(a)(46). Alternatively, an assault is aggravated if the person uses or exhibits a deadly weapon during the commission of the assault. Id. 22.01(a)(2). A firearm is a deadly weapon. Id. 1.07(a)(17)(A).

Analysis

Dominga and James E. Redfield, Jr., a medical doctor, testified regarding the life threatening injuries Dominga received on December 17. Hernandez testified that he suffered continued impairment to his foot. Thomas s testimony established that Appellant carried two firearms, a .45 semi-automatic and a .380 semi-automatic, up the hill where the shooting occurred. The evidence showed that both weapons had been fired. Also, six spent casings from the .45 were found on top of the hill. The .380 was fired before being abandoned. Further, both the .45 and the .380 were found abandoned on top of each other on top of the hill. The blue gloves given to Appellant to wear during the shooting were found at the scene of the alleged offense. Thomas testified that Appellant, Coulston, and Chino left his vehicle before the shooting. Mobley testified that he saw what he believed to be three men, two of whom he identified as Hispanic males, running toward Thomas s gold Ford Aerostar van after the shooting.

Paul testified that he identified and chased Appellant as he was running away from the shooting. The mere presence of an accused at the scene of an offense is not alone sufficient to support a conviction; however, it is a circumstance tending to prove guilt which, combined with other facts, may suffice to show that the accused was a participant. Valdez v. State, 623 S.W.2d 317, 321 (Tex. Crim. App. 1979). While flight alone will not support a guilty verdict, evidence of flight from a crime scene is a circumstance from which an inference of guilt may be drawn. Id. Viewing the evidence in the light most favorable to the jury s verdict, we conclude that a rational trier of fact could have found beyond a reasonable doubt that Appellant had participated as a member of a street gang in the aggravated assault at 115 East Smith Street.

Having determined that the evidence is legally sufficient, we address factual sufficiency. In addition to the evidence summarized above, the record contained testimony by Zarate that Paul was in the house immediately after the shooting and, therefore, he could not have chased and identified Appellant. Although this evidence is favorable to Appellant, the jury accepted the other overwhelming evidence of Appellant s participation in the shooting. The jury is free to believe or disbelieve any witness. Tidmore v. State, 976 S.W.2d 724, 730 (Tex. App. Tyler 1998, pet. ref d). The jury may resolve conflicts in the evidence, accept one version of the facts, disbelieve a party s evidence, and resolve any inconsistencies in favor of either party. Id.

We have conducted a neutral review of all of the evidence, both for and against the finding, giving proper deference to the jury s role as the sole judge of the weight and credibility of witness testimony. See Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997). The record does not reveal that the proof of Appellant s guilt was too weak to support the jury s finding beyond a reasonable doubt. Nor does the record reveal contrary evidence so strong that guilt could not have been proven beyond a reasonable doubt. Thus, we hold the evidence is factually sufficient to support the jury s finding. Appellant s first issue is overruled.

Improper Comment on the Evidence

 

In his second issue, Appellant contends that the trial court made an improper comment on the evidence when it read a portion of the transcript to the jury that the jury had requested. Appellant included no citations to any authorities or to the record in making this argument. The Texas Rules of Appellate Procedure state that an appellant s brief must state concisely all issues or points presented for review and contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record. Tex. R. App. P. 38.1(e), (h). The failure to brief, or adequately brief, an issue by an appellant effects a waiver of that issue on appeal. See Swearingen v. State, 101 S.W.3d 89, 100 (Tex. Crim. App. 2003). Appellant s brief does not contain a clear and concise argument on this issue and does not cite to any authorities or to the record. Accordingly, we hold that Appellant has waived any alleged error on appeal. See Tex. R. App. P. 38.1(e), (h). Appellant s second issue is overruled.

Conclusion

The judgment of the trial court is affirmed.

JAMES T. WORTHEN

Chief Justice

Opinion delivered February 28, 2006.

Panel consisted of Worthen, C.J., Griffith, J., and DeVasto, J.

(DO NOT PUBLISH)

 

1 Killingsworth testified that Chino was a moniker used by five of the thirty-six Latin Kings in Nacogdoches on December 17, 2002. At trial he stated that the police department was unable to identify which Chino was involved in this offense.

2 A muzzle blast is the fire seen coming from the end of a firearm.

3 This weapon was found by a citizen who had been looking for debris from the space shuttle explosion of February 1, 2003.

4 Paul was sixteen on December 17, 2002.