                                    COURT OF APPEALS
                                 EIGHTH DISTRICT OF TEXAS
                                      EL PASO, TEXAS

                                                 §
 SAMUEL BENITEZ,                                                 No. 08-09-00034-CR
                                                 §
                        Appellant,                                   Appeal from
                                                 §
 v.                                                          Criminal District Court No. 1
                                                 §
 THE STATE OF TEXAS,                                           of Dallas County, Texas
                                                 §
                        Appellee.                                (TC # F-0856598-H)
                                                 §

                                          OPINION

       Samuel Benitez was charged by indictment for the offense of murder. The jury found him

guilty and assessed punishment at confinement for life in the Institutional Division of the Texas

Department Criminal Justice. For the reasons that follow, we affirm the judgment of the trial court.

                                  FACTUAL BACKGROUND

       In 2008 Alma Avalos, her sister Jesenia Avalos, Jenny Patricia “Patty” Abrego, and Marina

“Lety” Garcia worked as waitresses at the Metropolis nightclub located at the intersection of Denton

Road and Webb Chapel in Dallas, Texas. At the club, customers could pay for drinks for the

waitresses to sit and drink with them. The victim, Augustine Plancarte, was known as “Angel” and

frequented the club. Jesenia and Angel had a personal relationship as well and lived together.

Appellant, known by the girls as “El Cocho,” and his friend “El Compita” were also customers at

Metropolis. Patty testified that Appellant told her that Compita was his worker or his bodyguard and

that Compita would do whatever he told him. There was also testimony that both Angel and

Appellant sold drugs.

       Angel Plancarte was murdered on June 4, 2008. Alma testified that in the days preceding
Angel’s death, Appellant offered her $40,000 to take a person she “more or less” thought was Angel

to a hotel. Jesenia testified that Appellant tried to get her to call Angel for him on June 1 or 2.

Appellant told her that Angel owed him money and would not pay him. When Jesenia told Angel

that Appellant was looking for him and wanted his money, Angel told her not to worry about his

problems. Marina testified that on June 3, Appellant mentioned to her that Angel owed him some

money and that he would find a way to collect it.

       Jesenia testified that on June 4, Appellant, Compita, and a woman named Lupe went to

Metropolis. Appellant told Jesenia that he was desperate about not getting paid and that he was

going to collect the money one way or another. Appellant bought drinks for Jesenia, Marina, Janet,

and Patty. He became upset when Janet went to sit with some other men. Appellant went outside,

and when he came back he showed the girls that he had a gun with a black grip. Patty and Marina

were scared and Patty told the disc jockey that Appellant had a gun. After Patty reported the gun,

Appellant and Compita left the club.

       Jesenia, Patty, and Marina saw Appellant in the parking lot of the club at approximately

4 a.m. He was driving a wine-colored Jeep Cherokee and Compita was in the passenger seat.

Marina saw a gun between Appellant’s legs as he asked the girls where they were going. Appellant

asked who had reported the gun and then accused Jesenia of doing so. Appellant then invited the

girls to a twenty-four hour bar and restaurant called Lago Mexico, but the girls declined the

invitation. Jesenia, Patty, and Marina testified that Appellant followed them for four or five minutes

after leaving the club and then turned onto the road leading to Lago Mexico. Jesenia testified that

when she arrived home, she saw Angel. Angel then told her that he was going to do something and

that he would be back.

       Rogelio Portillo testified that he was working security at Lago Mexico on June 4, 2008, when
he saw two cars pull into the parking lot at about 5 a.m. The first vehicle, a Jeep Cherokee, backed

into a parking space; the other vehicle, a Suburban, parked perpendicular to the front of the Jeep.

The passenger, a man with a bald head, got out of the Jeep but did not approach the other vehicle.

Rogelio saw the driver of the Jeep, who he described as an older man with a thick mustache,

approach the Suburban and get inside the front passenger seat of the vehicle. After he saw the driver

of the Jeep get into the Suburban, Rogelio went back inside Lago Mexico. Less than five minutes

after the vehicles arrived, he heard gunshots outside.

        Rogelio headed back towards the parking lot but stopped outside the second set of doors

when he saw the two men from the Jeep running in the parking lot. The older man ran around the

back of the Suburban and had his hand up. He threw the keys to the younger man, who ran to the

driver’s side of the Jeep. The Suburban moved slowly “by itself” out of the way of the Jeep and

stopped by itself, and the Jeep drove away. Portillo then went back inside Lago Mexico and called

9-1-1 to report the gunshots.

        Officer Brandon Innes of the Dallas Police Department was the first officer to respond to the

scene. Innes saw the victim slumped over in the driver’s seat of the Suburban with his foot on the

brake pedal. The Suburban was still in gear to drive.

        Detective Richard Dodge of the police department’s physical evidence section arrived at the

scene to photograph and collect evidence. He observed that the driver’s side window of the

Suburban had been shot out, the rear window had also been shot, there were bullet strikes on the

back left side of the vehicle, and there was a bullet hole in the headrest. Detective Dodge collected

a live 9 millimeter cartridge, two green beer bottles, a bullet that fell onto the sheet when the victim

was removed from the Suburban, and some drugs and a revolver from the victim’s pocket. The

revolver, which could hold five cartridges, had five unfired cartridges in it.
        The lead homicide detective on this shooting was Dallas Police Detective Eduardo Ibarra.

Detective Ibarra testified that when his team first arrived on the scene, the medical examiner field

agent found a Mexican consulate identification card under the name of Carlos Andrade, so they

believed that this was the deceased’s name. After an investigation of the fingerprint data base

(AFIS), they determined that Carlos Adrade was an alias and that the deceased’s true name was

Augustine Plancarte, “Angel.” Officers found five cell phones registered to Angel, and after

reviewing the phone records, the officers contacted some of the individuals whom Angel had

phoned. They spoke to Janet, who put them in contact with Jesenia and the other girls.

        Detective Ibarra testified that during the course of his investigation, he learned that Angel

had some problems with an individual nicknamed “Cocho.” The investigators traced Cocho first

to a Francisco Ibarra, whose name on a lease agreement was Daniel Reyes, who ultimately was

determined to be Appellant. Detective Ibarra developed a six-person photo lineup consisting of

photographs of Appellant and men with similar physical characteristics. Jesenia identified Appellant

from the lineup without hesitation, and Lety and the rest of the girls also identified him. Detective

Ibarra also determined that there had been a series of phone calls between Angel and Appellant on

June 4, 2008, including a call from Appellant to Angel at 4:14 a.m. Based on this information,

Detective Ibarra obtained an arrest warrant for Appellant. Members of fugitive unit, including

Detective Jason Kennedy, arrested Appellant after a short foot chase on June 12, 2008.

        Detective Ibarra conducted a videotaped interview with Appellant after his arrest. During

the interview, Appellant told multiple versions of the events on June 4, 2008. Initially, he said that

he was at Lago Mexico alone and went inside to drink a beer. He claimed that he was waiting to talk

to Angel when a guy came “out of nowhere” and shot Angel. Appellant next said that “he was put

up to this, that his life was threatened, and that some associates of his had sent this guy to do this to
Angel,” but denied any involvement. Appellant’s third version of the shooting was that he drove up

with Compita and that, while he was talking to Angel, Compita went around the Suburban and shot

Angel. Appellant told the detective that his job was to lure Angel to the location. Also during the

interview, Appellant provided a buccal swab and told the officers where they could locate Compita.

       The detectives identified Compita as Alfredo Diaz, and the female witnesses all identified

him as Compita from photo lineups. Telephone records did not reveal any calls between Angel and

Compita. (4 RR 22-23). After his arrest, Compita requested an attorney and was not interviewed.

Detective John Palmer obtained a search warrant and consent from Compita’s landlord to search the

bedroom Compita rented. The officers seized a 38 Special revolver, which was later determined to

be the murder weapon, and a box of ammunition from Compita’s room. Officers later recovered a

letter from Compita to his landlord which said, “Please destroy the gun that’s in my room.”

       Andra Lewis-Krick, a crime scene analyst with the Dallas Police Department, testified that

she analyzed, photographed, and collected forensic evidence from the Suburban in which Angel died.

Lewis-Krick also processed the vehicle for fingerprints and the collection of DNA. The one

identifiable print found on the rearview mirror belonged to Angel. She observed cratering around

a bullet defect in the rear driver’s side window, which indicated that a bullet traveled through the

window from outside the vehicle and was consistent with a bullet traveling through the window and

through the front driver’s side headrest. She also observed grazing-type marks outside the vehicle.

Lewis-Krick testified that she had previously worked at the Southwestern Institute of Forensic

Sciences (SWIFS) and was personally familiar with Tara Johnson, a DNA analyst at SWIFS. The

DNA testing performed by Johnson did not reveal the presence of Compita’s DNA on any of the

evidence; a swab collected from the interior of Angel’s car indicated a one in seven probability that

Appellant was the contributor of the DNA.
         Vicki Hall, a trace evidence examiner at SWIFS, testified about the results of gunshot residue

(GSR) testing. She identified bullet defects and GSR on two shirts worn by Angel at the time of his

death. The GSR surrounding a defect near the right upper back area of the shirts indicated that the

gun was fired from a distance of one to five feet. She also found GSR on Angel’s hands, indicating

that he had fired or handled a firearm or been in close proximity to the discharge of a firearm. Hall

testified that there was GSR on the ceiling liner of the vehicle, which indicated that a gun was

discharged in the vehicle or that someone possibly stood outside the vehicle and pointed the gun in

from the passenger side. She also identified GSR on the front and back of the passenger side seat

cover.

         Dr. Jill Urban, a forensic pathologist at the Dallas County Medical Examiner’s office at

SWIFS, testified that she reviewed the results of the autopsy performed on Angel’s body by another

medical examiner, Dr. Amy Gruszecki. The autopsy revealed that Angel suffered gunshot wounds

to the head, the right arm, and the trunk. After initially issuing an autopsy report on July 16, 2008,

Dr. Gruszecki amended her report to reflect that the wound to Angel’s left chest was an exit wound;

the entrance was on the right back. Four of the five gunshot wounds were from right to left; the fifth,

which had an irregular entrance, was from the back. Toxicology results revealed the presence of

amphetamine and methamphetamine. Dr. Urban testified that Angel died as a result of multiple

gunshot wounds.

         Charles Clow, a tool mark examiner at SWIFS, testified that he performed testing on the

firearms and bullets collected. He determined that the bullets and bullet fragments recovered during

the autopsy were fired from the revolver found in Compita’s room. He also determined that the

unfired 9-millimeter Luger cartridge found at the scene had been cycled through the semiautomatic

handgun found in the vehicle at the time of Appellant’s arrest.
       Appellant moved for a directed verdict, which the trial court denied, but he did not present

any evidence during the guilt-innocence phase of trial. The jury found Appellant guilty of murder,

and after hearing the testimony of Angel’s uncle, sentenced Appellant to life in prison.

                             SUFFICIENCY OF THE EVIDENCE

       In two issues, Appellant challenges the legal and factual sufficiency of the evidence to

support his conviction. He complains that the evidence fails to establish that, either as a primary

actor or as a party, he intentionally or knowingly caused Angel’s death.

                                        Standard of Review

       In reviewing the legal sufficiency of evidence, we consider all evidence in the light most

favorable to the verdict and determine whether any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307,

318-19, 99 S.Ct. 2781, 2788-89, 61 L.Ed.2d 560 (1979). We look at “events occurring before,

during and after the commission of the offense and may rely on actions of the defendant which show

an understanding and common design to do the prohibited act.” Hooper v. State, 214 S.W.3d 9, 13

(Tex.Crim.App. 2007), quoting Cordova v. State, 698 S.W.2d 107, 111 (Tex.Crim.App. 1985). We

must account for “the responsibility of the trier of fact to fairly resolve conflicts in testimony, to

weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Hooper,

214 S.W.3d at 13, quoting Jackson, 443 U.S. at 318-19, 99 S.Ct. 2181.

       Appellate courts are constitutionally empowered to review the judgment of the trial court to

determine the factual sufficiency of the evidence used to establish the elements of an offense.

Johnson v. State, 23 S.W.3d 1, 6 (Tex.Crim.App. 2000), citing Clewis v. State, 922 S.W.2d 126,

129-30 (Tex.Crim.App. 1996). In examining the factual sufficiency of the elements of the offense,

all evidence is viewed in a neutral light, favoring neither party. Clewis, 922 S.W.2d at 129. In
performing our review, due deference is given to the fact finder’s determinations. See Johnson, 23

S.W.3d at 8-9. Evidence may be factually insufficient if it is so weak that it would clearly be wrong

and manifestly unjust for the verdict to stand, or “the adverse finding is against the great weight and

preponderance of the available evidence.” Johnson, 23 S.W.3d at 11. The question that must be

answered when reviewing factual sufficiency is whether a neutral review of all the evidence, both

for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine

confidence in the jury’s determination, or proof of guilt, although ample if taken alone, is greatly

outweighed by contrary proof. Id .

       Under the first prong of Johnson, we cannot conclude that a conviction is “clearly wrong”

or “manifestly unjust” simply because, on the amount of evidence admitted, we would have voted

to acquit had we been on the jury. Watson v. State, 204 S.W.3d 404, 417 (Tex.Crim.App. 2006).

Under the second prong of Johnson, we cannot declare that a conflict in the evidence justifies a new

trial simply because we disagree with the jury’s resolution of the conflict. Id. In order to find that

evidence is factually insufficient to support a verdict, we must be able to say, with some objective

basis in the record, that the great weight and preponderance of the evidence contradicts the jury’s

verdict. Id.

                                       Elements of the Offense

       A person commits murder if he intentionally or knowingly causes the death of an individual.

TEX .PEN .CODE ANN . § 19.02(b)(1)(Vernon 2003). The jury was instructed to find Appellant guilty

if it believed beyond a reasonable doubt that Appellant committed the offense by his own conduct

or as a party. A person can be criminally responsible as a party to an offense if the offense is

committed by his own conduct, by conduct of another for which he is criminally responsible, or both.

TEX .PEN .CODE ANN . § 7.01(a)(Vernon 2003). Under Texas law, a person can be criminally
responsible for an offense committed by the conduct of 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.” TEX .PEN .CODE ANN . § 7.02(a)(2).

        The evidence must show that, at the time of the offense, the parties were acting together, each

contributing some part toward execution of their common purpose. Ransom v. State, 920 S.W.2d

288, 302 (Tex.Crim.App. 1994)(op. on reh’g). In determining whether a defendant participated in

an offense as a party, the fact finder may examine the events occurring before, during, and after the

commission of the offense and may rely on actions of the defendant that show an understanding and

common design to commit the offense. Id. citing Cordova v. State, 698 S.W.2d 107, 111

(Tex.Crim.App. 1985)); see Miller v. State, 83 S.W.3d 308, 314 (Tex.App.--Austin 2002, pet. ref’d).

        Circumstantial evidence is as probative as direct evidence in establishing the guilt of an actor,

and circumstantial evidence alone can be sufficient to establish guilt. Guevara v. State, 152 S.W.3d

45, 49 (Tex.Crim.App. 2004); see also Wygal v. State, 555 S.W.2d 465, 469 (Tex.Crim.App. 1977)

(circumstantial evidence may be sufficient to show that one is a party to the offense). Though mere

presence at the scene is not enough to sustain a conviction, it is a factor that may be considered in

determining whether an appellant was a party to an offense. Sosa v. State, 177 S.W.3d 227, 230

(Tex.App.--Houston [1st Dist.] 2005, no pet.); see Livingston v. State, 739 S.W.2d 311, 330

(Tex.Crim.App. 1987). Finally, evidence of flight from the scene of the crime is evidence from

which an inference of guilt may be drawn. See, e.g., Foster v. State, 779 S.W.2d 845, 859

(Tex.Crim.App. 1989); Rumbaugh v. State, 629 S.W.2d 747, 752 (Tex.Crim.App. 1982).

                                                Analysis

        In Point of Error One, Appellant argues the evidence is legally insufficient to support his

conviction. We disagree. Taken in the light most favorable to the verdict, the record reflects
evidence of an ongoing dispute between Appellant and Angel. In the days immediately prior to

Angel’s death, Appellant offered Alma $40,000 to take someone she thought was Angel to a hotel.

Appellant tried to get Jesenia to call Angel for him and told her that Angel owed him money. On

the day before the murder, Appellant told Marina that Angel owed him money and that he would find

a way to collect it. When Appellant, Compita, and Lupe went to Metropolis on the night of the

murder, Appellant reiterated to Jesenia that he was desperate and that he was going to collect the

money one way or another. Both Marina and Patty saw Appellant with a black-handled gun at

Metropolis on the night of Angel’s murder, and Marina saw the gun between Appellant’s legs in his

Jeep outside the club as well.

       Rogelio testified that he saw a Jeep Cherokee and a Suburban pull into the parking lot of

Lago Mexico on June 4, 2008. He observed the younger, bald-headed passenger stand by the Jeep,

while the driver, a man fitting Appellant’s description, approach the Suburban and sit in the front

seat of the vehicle. After he heard gunshots, Rogelio went back towards the parking lot and saw the

two men from the Jeep running in the parking lot. He testified the older man ran around the back

of the Suburban and had his hand up; the older man threw the keys to the younger man, who ran to

the driver’s side of the Jeep and drove out of the parking lot.

       The medical examiner testified that four of the gunshot wounds were from right to left and

the fifth was from the back. The trace evidence examiner testified the presence of GSR on the

ceiling liner of Angel’s vehicle indicated that a gun was discharged in the vehicle. Even though the

officers recovered the murder weapon from Compita’s house with a note to the landlord asking to

destroy it, there was enough evidence for the jury to conclude that Appellant shot Angel while he

was sitting in the passenger’s seat of Angel’s vehicle and then gave the murder weapon to Compita.

Additionally, a rational jury could have concluded that Appellant directed Compita to kill Angel.
This theory is evidenced by the testimony of Jesenia and Marina that Appellant said he would find

a way to collect the money Angel owed him and Patty’s testimony that Appellant said that Compita

would do whatever Appellant told him.

       Appellant admitted to Detective Ibarra that he was present at Lago Mexico during Angel’s

murder. In fact, Appellant’s statement to Detective Ibarra indicated that Appellant was more than

merely present. Appellant also told several versions of the events at Lago Mexico and ultimately

admitted that his job was to lure Angel to the location. He told Detective Ibarra that he drove to

Lago Mexico with Compita and that, while he was talking to Angel, Compita went around the

Suburban and shot Angel, which is consistent with Hall’s testimony that the GSR could have been

deposited on the ceiling liner of Angel’s vehicle if someone stood outside the vehicle and pointed

a gun from the passenger side. Because we conclude that the evidence is legally sufficient, we

overrule Point of Error One.

       In Point of Error Two, Appellant challenges the factual sufficiency of the evidence to support

his conviction. In determining whether Appellant acted as a party to the offense, the jury could

examine the events occurring before, during, and after the commission of the offense and could rely

on actions of Appellant that show an understanding and common design to commit the offense. See

Ransom, 920 S.W.2d at 302. Appellant repeatedly complained that Angel owed him money and that

he intended to collect it. He bragged to Patty that Compita would do whatever he told him to do.

Rogelio’s testimony also demonstrated Appellant’s involvement. Rogelio saw a Jeep Cherokee and

a Suburban pull into the parking lot of Lago Mexico and that the driver of the Jeep, a man fitting

Appellant’s description, got into the front passenger’s seat of the Suburban while the younger, bald-

headed passenger stood by the Jeep. After he heard the gunshots, Rogelio went back towards the

parking lot and saw the two men from the Jeep running in the parking lot before quickly driving
away.

        The jury could also draw an inference of guilt from Appellant’s and Compita’s flight from

Lago Mexico after the shooting. Appellant also attempted to flee from Detective Kennedy.

Appellant told Detective Ibarra several versions of what happened the night of the killing and

eventually admitted that his job was to lure Angel to the location. Because the evidence is factually

sufficient to support Appellant’s conviction, we overrule Point of Error Two.

                                  CONFRONTATION CLAUSE

        In Points of Error Three and Four, Appellant argues that he was deprived of the right to

confront and cross-examine two significant witnesses about their analysis and test results which were

offered into evidence. He complains that the trial court abused its discretion in admitting (1) the

results of DNA testing through a witness who did not perform the testing, and (2) testimony

concerning the autopsy from a doctor who did not perform the autopsy. The State responds that

Appellant failed to preserve these issues for review because he did not object at trial.

                                           Applicable Law

        To preserve a complaint for appellate review, the party must state the grounds for the desired

ruling from the trial court “with sufficient specificity to make the trial court aware of the complaint,

unless the specific grounds [are] apparent from the context . . . .” TEX .R.APP .P. 33.1(a)(1)(A);

Reyna v. State, 168 S.W.3d 173, 177 (Tex.Crim.App. 2005). This is to give the trial court an

opportunity to rule on the defendant’s appellate rationale. Reyna, 168 S.W.3d at 178. It is also to

give the trial court the opportunity to correct the error or remove the basis for the objection. Reyna,

168 S.W.3d at 179. The Sixth Amendment right to confront and cross-examine witnesses may also

be forfeited if the defendant fails to object. Deener v. State, 214 S.W.3d 522, 527 (Tex.App.--Dallas,

2006, pet. ref’d).
       Under the Sixth Amendment, the accused has a constitutional right “to be confronted with

the witnesses against him.” U.S. CONST . amend. VI. The Supreme Court has held that the

confrontation clause bars the admission of out-of-court testimonial statements made by a witness

who does not testify unless the witness is unavailable to testify and the defendant has had a prior

opportunity to cross-examine the witness. Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354,

158 L.Ed.2d 177 (2004). The Supreme Court recently applied Crawford to certificates of analysis

from non-testifying laboratory analysts, concluding that the certificates were affidavits containing

testimonial statements for the purposes of the Sixth Amendment. Melendez-Diaz v. Massachusetts,

129 S.Ct. 2527, 2532, 174 L.Ed.2d 314 (2009); see also Cuadros-Fernandez v. State, No.05-06-

01464, 2009 WL 2647890, at *8 (Tex.App.--Dallas 2009, no pet. h.)(not yet designated for

publication)(applying Melendez-Diaz to objected to error in the admission of a DNA report without

testimony from the analyst who performed the testing).

       The Austin Court of Appeals has considered whether the failure to object to Crawford error

waives appellate review of the issue. In Bunton v. State, 136 S.W.3d 355, 369 (Tex.App.--Austin

2004, pet. ref’d), the appellant claimed that Crawford represented a new and novel constitutional rule

such that it would have been futile to object on the basis of the Sixth Amendment’s confrontation

clause. But the court rejected the argument, holding that “Crawford makes clear that the federal

constitutional right to confront one’s accusers is neither new nor novel.” Id. at 369. We agree with

our sister court that, “We find nothing in Crawford that would excuse appellant for failing to make

a confrontation claim at trial.” Id.

                                           Relevant Facts

       The State presented the testimony of Andra Lewis-Krick, a crime scene analyst, who

collected evidence from Angel’s car. She previously worked at SWIFS, was personally familiar with
Tara Johnson, a DNA analyst, and had been made aware of the results of Johnson’s examination of

swabs she submitted for testing. When the State offered Johnson’s DNA report during Lewis-

Krick’s testimony, defense counsel affirmatively stated that he had no objection. Dr. Jill Urban

testified about the results of the autopsy which Dr. Amy Gruszecki performed. Appellant failed to

lodge a confrontation clause objection to her testimony. We overrule Points of Error Three and Four

and affirm the judgment of the trial court.


August 4, 2010
                                                     ANN CRAWFORD McCLURE, Justice

Before Chew, C.J., McClure, and Rivera, JJ.

(Do Not Publish)
