Richard Mendoza, Jr v. State ( 2014 )


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  • Opinion issued July 3, 2014.
    In The
    Court of Appeals
    For The
    First District of Texas
    ————————————
    NO. 01-13-00146-CR
    ———————————
    RICHARD MENDOZA, JR., Appellant
    V.
    THE STATE OF TEXAS, Appellee
    On Appeal from the 400th District Court
    Fort Bend County, Texas
    Trial Court Case No. 11-DCR-058694
    MEMORANDUM OPINION ON REHEARING
    A jury convicted Richard Mendoza of murder, assessed punishment at fifty
    years’ confinement, and imposed a $10,000 fine. On appeal, Mendoza complains
    that (1) the evidence is legally insufficient to support his conviction because it is
    based on uncorroborated accomplice–witness testimony; (2) the trial court erred in
    failing to include an accomplice–as–a–matter–of–fact instruction in the jury
    charge; (3) the evidence is legally insufficient to support the conviction; and (4) the
    trial court abused its discretion in admitting a recording of a telephone
    conversation between Mendoza and a detective.
    After we issued our opinion and judgment, Mendoza moved for rehearing.
    We deny Mendoza’s motions for rehearing, but order that this court’s opinion and
    judgment of March 13, 2014, be withdrawn and set aside. We issue this opinion
    and judgment in their stead.1 We affirm.
    Background
    In November 2002, Mendoza drove Christopher Daigle, Joshua Fretz, and
    Daniel Rodriguez to a field to pick mushrooms. Mendoza was seventeen years
    old; Fretz and Rodriguez were fourteen and fifteen years old, respectively. Fretz
    testified that, at the time, Daigle and Mendoza were best friends, but he thought it
    was possible that Mendoza wanted to fight Daigle in the field due to jealousy over
    a girlfriend. Upon arrival at the field, Rodriguez walked in front of Fretz, who
    1
    Mendoza filed a motion for rehearing and a motion for rehearing en banc.
    Because we issue a new opinion and judgment, we dismiss Mendoza’s
    motion for rehearing en banc as moot. See Giesberg v. State, 
    945 S.W.2d 120
    , 131 n.3 (Tex. App.—Houston [1st Dist.] 1997), aff’d, 
    984 S.W.2d 245
          (Tex. Crim. App. 1998).
    2
    walked in front of Mendoza and Daigle. Mendoza carried a shotgun. Daigle asked
    Mendoza why he brought the shotgun. Mendoza replied that he brought it to hunt
    squirrels and birds.   Fretz testified that he did not doubt Mendoza’s answer.
    Rodriguez testified that he did not remember this conversation and did not know at
    the time why Mendoza had brought the shotgun. Mendoza suddenly shot Daigle in
    the back of the head. Fretz and Rodriguez ran back to Mendoza’s truck. One or
    two minutes later, Mendoza arrived back at the truck. Mendoza drove Fretz and
    Rodriguez away from the field.
    Mendoza later told Fretz and Rodriguez to go back to the field to move
    Daigle’s body. Mendoza asked them to bring a change of clothes. The three
    returned to the field at night. Mendoza brought a flashlight, a trash bag, scissors,
    and rope. The three dragged Daigle’s body to a brushy part of the field. Fretz
    removed Daigle’s clothes and put them in the trash bag. They then drove to a
    wooded area near Fretz’s house, undressed there, and placed their clothes in the
    same trash bag. Fretz later burned the clothes.
    Fretz testified that Mendoza fabricated a story that Mendoza and Daigle
    went to a mall together and that, at the mall, Daigle left Mendoza to meet a group
    of his friends.   Rodriguez also testified that Mendoza fabricated a story that
    Mendoza, Fretz, and Rodriguez had left Daigle at a mall.
    3
    Several days after Daigle was reported missing, Detective Stepp called a
    phone number associated with Mendoza. The speaker self–identified as Mendoza.
    The speaker stated that he had not seen Daigle since November 7, 2002. He stated
    that, on that day, he had left Daigle at a mall because his mother had asked him to
    come home. The speaker also stated that Daigle had decided to remain at the mall
    with some girls. He stated that he had not seen Daigle since that contact and
    mentioned that Daigle had spoken about running away because of “his situation at
    home” with his mother and grandmother. The speaker mentioned that Daigle’s
    father would be released from jail soon and that Daigle wanted to live with his
    father, rather than his grandmother.
    Several weeks later, Mendoza told Tyler Hall, one of his high school friends,
    that he had shot Daigle. Mendoza drove Hall to a field and told her that he had
    shot Daigle there. Hall testified that she thought that Mendoza was joking at the
    time.
    In or about January 2009, Daigle’s mother recognized Hall at a restaurant
    and mentioned that she had heard that Mendoza had killed Daigle. Hall responded
    that she had heard the same rumor. At Daigle’s mother’s request, Hall contacted
    some detectives and visited a police station. Hall led the detectives to the field
    where Mendoza had told her that he had shot Daigle.
    4
    In July 2011, Fretz led detectives to a field, one street away from the field
    that Hall had identified. The following month, Rodriguez led the detectives to the
    same field that Fretz had identified. A detective soon discovered a bone fragment
    in this field. After conducting a DNA test, a forensic analyst determined that the
    bone fragment was 11,000 times more likely to be from the son of Daigle’s parents
    than from any other Caucasian person.
    Course of proceedings
    Detective McKinnon filed an affidavit to obtain a warrant. In it, McKinnon
    avers that Phillip Gardner stated that he observed Daigle in Mendoza’s truck with
    Rodriguez and Fretz on the day Daigle went missing. Gardner’s earlier written
    statement to the police, however, does not mention Fretz.
    At trial, Detectives Tippit and McKinnon testified that the offense occurred
    in Fort Bend County. Detective McKinnon testified that Brittany Parker had told
    him that Nick Camerillo had told her that Camerillo, not Mendoza, had killed
    Daigle. Detective Stepp testified that she had received a lead that gang members
    may have been involved in Daigle’s disappearance. Tobias Tzur testified that he
    saw Daigle after November 7, 2002, the date Mendoza allegedly killed Daigle.
    5
    Discussion
    I.    Accomplice witnesses
    The trial court did not include an accomplice–witness jury instruction with
    respect to Fretz and Rodriguez and permitted them to testify; on appeal, Mendoza
    contends that they were accomplice witnesses.
    Standard of Review
    We review a trial court’s decision to deny a requested accomplice–witness
    jury instruction for an abuse of discretion. Delacerda v. State, 
    425 S.W.3d 367
    ,
    395 (Tex. App.—Houston [1st Dist.] 2011, no pet.); see also Paredes v. State, 
    129 S.W.3d 530
    , 538 (Tex. Crim. App. 2004). A trial court abuses its discretion only if
    its decision is “so clearly wrong as to lie outside the zone within which reasonable
    people might disagree.” Taylor v. State, 
    268 S.W.3d 571
    , 579 (Tex. Crim. App.
    2008).
    Analysis
    Mendoza’s complaints about uncorroborated accomplice–witness testimony
    and the failure to include an accomplice–witness instruction hinge upon whether
    Fretz and Rodriguez are accomplice witnesses. Article 38.14 of the Code of
    Criminal Procedure provides, “A conviction cannot be had upon the testimony of
    an accomplice unless corroborated by other evidence tending to connect the
    defendant with the offense committed; and the corroboration is not sufficient if it
    6
    merely shows the commission of the offense.” TEX. CODE CRIM. PROC. ANN.
    art. 38.14 (West 2005). To be considered an accomplice witness, a witness’s
    participation with a defendant must have involved some affirmative act that
    promotes the commission of the offense with which the defendant is charged.
    Druery v. State, 
    225 S.W.3d 491
    , 498 (Tex. Crim. App. 2007) (citing 
    Paredes, 129 S.W.3d at 536
    ). A witness is not an accomplice witness merely because he knew
    of the offense and did not disclose it, or even if he concealed it. 
    Id. (citing Kunkle
    v. State, 
    771 S.W.2d 435
    , 439 (Tex. Crim. App. 1986)). Neither a witness’s
    presence at the scene of the crime, nor a witness’s complicity with a defendant in
    the commission of another offense apart from the charged offense, renders that
    witness an accomplice witness. 
    Id. (citing Kunkle
    , 771 S.W.2d at 439). If the
    evidence is conflicting and it remains unclear whether a witness is an accomplice,
    a trial court should allow the jury to decide whether the witness is an accomplice
    witness as a matter of fact. 
    Id. at 498–99
    (citing 
    Paredes, 129 S.W.3d at 536
    ). But
    if the evidence clearly shows that a witness is not an accomplice, a trial court is not
    obliged to instruct the jury on the accomplice–witness rule—as a matter of law or
    fact. Smith v. State, 
    332 S.W.3d 425
    , 440 (Tex. Crim. App. 2011) (citing Gamez v.
    State, 
    737 S.W.2d 315
    , 322 (Tex. Crim. App. 1987)).
    Mendoza contends that Fretz and Rodriguez are accomplice witnesses
    because they testified that they aided Mendoza in covering up Daigle’s murder by
    7
    moving Daigle’s body and removing and burning Daigle’s clothes. Fretz and
    Rodriguez, however, did not undertake an affirmative act to promote the
    commission of murder; rather, they helped conceal it. In Druery, two witnesses
    (1) were present before and during the murder; (2) did not warn the victim that the
    defendant intended to kill the victim; and (3) received forty dollars each after the
    murder. 
    Druery, 225 S.W.3d at 500
    . One of the witnesses assisted the defendant
    in disposing of the body and the murder weapon. 
    Id. The Texas
    Court of Criminal
    Appeals nevertheless rejected a contention that they were accomplice witnesses.
    
    Id. (“[M]erely assisting
    after the fact in the disposal of a body does not transform a
    witness into an accomplice witness in a prosecution for murder.”); see also
    
    Paredes, 129 S.W.3d at 537
    (“Although [a witness] assisted after the fact in the
    disposal of the bodies, he is not an accomplice as a matter of law because he is not
    susceptible to prosecution for capital murder.”).
    Mendoza contends that Fretz and Rodriguez are accomplice witnesses
    because they knew that Mendoza had a shotgun and planned to fight Daigle, but
    gave no warning to Daigle. Even if Fretz and Rodriguez knew that Mendoza
    planned to assault Daigle, however, they are not accomplice witnesses to murder or
    assault, because they committed no affirmative act to assist Mendoza in shooting
    Daigle or in committing an assault. See 
    Druery, 225 S.W.3d at 498
    (“A witness is
    8
    not an accomplice witness merely because he or she knew of the offense and did
    not disclose it.”).
    Following the Court of Criminal Appeals’ analysis in Druery, neither Fretz
    nor Rodriguez was an accomplice witness; thus, the trial court did not err in
    concluding that their testimony need not be corroborated. See 
    id. at 500.
    For the
    same reason, the trial court was within its discretion in failing to include an
    accomplice–as–a–matter–of–fact instruction in the jury charge, because the
    evidence presented does not raise a dispute of fact as to whether Fretz and
    Rodriguez are accomplice witnesses. See 
    Smith, 332 S.W.3d at 440
    .
    II.    Sufficiency of the evidence
    Standard of review
    In reviewing the sufficiency of the evidence to support a conviction, we
    consider all of the record evidence in a light most favorable to the verdict, and
    determine whether no rational fact–finder could have found that each essential
    element of the charged offense was proven beyond a reasonable doubt.         See
    Jackson v. Virginia, 
    443 U.S. 307
    , 319, 
    99 S. Ct. 2781
    , 2789 (1979); In re
    Winship, 
    397 U.S. 358
    , 361, 
    90 S. Ct. 1068
    , 1071 (1970); Laster v. State, 
    275 S.W.3d 512
    , 517 (Tex. Crim. App. 2009); Williams v. State, 
    235 S.W.3d 742
    , 750
    (Tex. Crim. App. 2007). We consider the combined and cumulative force of all
    the evidence, to determine whether the necessary inferences have a reasonable
    9
    basis in the evidence. Clayton v. State, 
    235 S.W.3d 772
    , 778 (Tex. Crim. App.
    2007) (citing Hooper v. State, 
    214 S.W.3d 9
    , 16–17 (Tex. Crim. App. 2007)).
    Circumstantial evidence is as probative as direct evidence in establishing the guilt
    of an actor, and circumstantial evidence can be sufficient to establish guilt. 
    Id. We presume
    that the fact–finder resolved any conflicting inferences in favor of the
    verdict, and we defer to that resolution. See 
    Jackson, 443 U.S. at 326
    , 99 S. Ct. at
    2793; 
    Clayton, 235 S.W.3d at 778
    .
    Analysis
    Mendoza complains that the evidence is legally insufficient to support his
    conviction because (1) the Fort Bend County trial court lacked jurisdiction in the
    absence of evidence that the offense occurred in Fort Bend County, rather than in
    Brazoria County; (2) the detective’s affidavit to obtain a warrant contains false
    information; (3) the State failed to indict Mendoza within ninety days of his arrest;
    (4) the State did not proffer detectives’ witness interview reports, did not call a
    medical examiner to testify as to the cause of Daigle’s death, and did not proffer
    any physical evidence; (5) a detective testified that Brittany Parker told him that
    Nick Camerillo had told her that Camerillo, not Mendoza, had killed Daigle; (6) a
    detective testified that she had received a lead that gang members may have been
    involved in Daigle’s disappearance; and (7) Tobias Tzur testified that he saw
    Daigle after November 7, 2002, the date Mendoza allegedly killed Daigle.
    10
    Mendoza’s first contention is without merit.           Detectives Tippit and
    McKinnon both testified that the offense occurred in Fort Bend County, not
    Brazoria County, and thus some evidence supports a finding that the offense
    occurred in that county. Accordingly, we hold that the trial court had jurisdiction.
    Second, Mendoza asks that we set aside the conviction because, in his
    warrant seeking Mendoza’s arrest, McKinnon avers that Phillip Gardner stated that
    that he saw both Rodriguez and Fretz in Mendoza’s truck on the day Daigle went
    missing. Gardner’s written statement to police, however, does not mention Fretz.
    Regardless, both Rodriguez and Fretz testified at trial that Fretz was with
    Mendoza, Daigle, and Rodriguez on the day in question. Because we presume the
    jury resolved any conflicting inferences in favor of the verdict and defer to that
    resolution, we hold that sufficient evidence supports the jury’s implicit finding that
    Fretz was with Daigle, Mendoza, and Rodriguez on the day Daigle went missing.
    See 
    Clayton, 235 S.W.3d at 778
    .
    Third, Mendoza contends that the evidence is legally insufficient because the
    State failed to indict Mendoza within ninety days of his arrest. If the State is not
    ready for trial after ninety days of detention, a defendant accused of a felony must
    be released either on personal bond or by reducing the amount of bail required.
    TEX. CODE CRIM. PROC. ANN. art. 17.151, § 1(1) (West 2005). This article of the
    Code of Criminal Procedure, however, does not deal with the admissibility of
    11
    evidence or the weight to be applied to evidence, nor does it limit the State’s right
    to prosecute the defendant and obtain a conviction. It does not provide a basis for
    setting aside the conviction based on legally insufficient evidence.
    Fourth, Mendoza contends that the evidence is legally insufficient because
    the State did not proffer Detectives Tippit and Weathers’ witness interview reports,
    did not call a medical examiner to testify as to the cause of Daigle’s death, and did
    not proffer any physical evidence. This argument is unavailing, because the State
    introduced other types of evidence, including eyewitness testimony and DNA
    evidence, that are legally sufficient to support the jury’s determination that Daigle
    was dead and that Mendoza shot him in a field.
    Fifth, Mendoza observes that Detective McKinnon testified that Brittany
    Parker had told him that Nick Camerillo admitted to her that he was the one who
    shot Mendoza. Rodriguez and Fretz, however, testified that it was Mendoza who
    killed Daigle, and Hall testified that Mendoza confessed to her that he did.
    Because we presume the jury resolved any conflicting inferences in favor of the
    verdict and defer to that resolution, we hold that sufficient evidence supports the
    jury’s finding that Mendoza, not Camerillo, killed Daigle.        See 
    Clayton, 235 S.W.3d at 778
    .
    Sixth, Mendoza also observes that Detective Stepp testified that she had
    received a lead that gang members may have been involved in Daigle’s
    12
    disappearance. Rodriguez and Fretz, however, testified that it was Mendoza who
    killed Daigle, and Hall testified that Mendoza confessed to her that he did.
    Because we presume the jury resolved any conflicting inferences in favor of the
    verdict and defer to that resolution, we hold that sufficient evidence supports the
    jury’s finding that Mendoza, not gang members, killed Daigle. See 
    id. Finally, Mendoza
    similarly contends that the evidence is legally insufficient
    because Tobias Tzur testified that he saw Daigle alive after the date that Mendoza
    allegedly killed Daigle. In contrast, Rodriguez and Fretz testified that Mendoza
    killed Daigle on November 7, 2002. Because we presume the jury resolved any
    conflicting inferences in favor of the verdict and defer to that resolution, we hold
    that sufficient evidence supports the jury’s finding that Mendoza killed Daigle on
    November 7, 2002. See 
    id. III. Admission
    of evidence
    Standard of Review
    We review a trial court’s decision to admit or exclude evidence for an abuse
    of discretion. Martinez v. State, 
    327 S.W.3d 727
    , 736 (Tex. Crim. App. 2010). A
    trial court abuses its discretion only if its decision is “so clearly wrong as to lie
    outside the zone within which reasonable people might disagree.” 
    Taylor, 268 S.W.3d at 579
    . A trial court does not abuse its discretion if some evidence
    supports its decision. Osbourn v. State, 
    92 S.W.3d 531
    , 538 (Tex. Crim. App.
    13
    2002). We uphold a trial court’s evidentiary ruling if it was correct on any theory
    of law applicable to the case. De La Paz v. State, 
    279 S.W.3d 336
    , 344 (Tex.
    Crim. App. 2009).
    Analysis
    Mendoza challenges the authenticity of the recorded telephone conversation
    proffered at trial as his statements to Detective Stepp.            Texas Rule of
    Evidence 901(b) provides an illustrative, rather than exhaustive, list of examples of
    authentication. TEX. R. EVID. 901(b). A party may authenticate the identity of a
    telephone caller by the self–identification of the caller coupled with additional
    evidence, such as the context and timing of the call, the contents of the statement
    challenged, distinctive vocal characteristics, and disclosure of knowledge and facts
    known peculiarly to the caller. Mosley v. State, 
    355 S.W.3d 59
    , 69 (Tex. App.—
    Houston [1st Dist.] 2010, pet. ref’d); Manemann v. State, 
    878 S.W.2d 334
    , 338
    (Tex. App.—Austin 1994, pet. ref’d).
    After Daigle went missing, Detective Stepp called a phone number
    associated with Mendoza. The speaker self–identified as Mendoza. The speaker
    stated that he had not seen Daigle since November 7, 2002. He stated that, on that
    day, he left Daigle at a mall because his mother had asked him to come home. The
    speaker also stated that Daigle decided to stay at the mall with some girls. He
    stated that he had not seen Daigle since that contact and mentioned that Daigle had
    14
    spoken about running away because of “his situation at home” with his mother and
    grandmother. The speaker mentioned that Daigle’s father would be released from
    jail soon and that Daigle wanted to live with his father, rather than his
    grandmother.
    Fretz testified that Mendoza had fabricated a story that, on November 7,
    2002, Mendoza and Daigle went to a mall together and that, at the mall, Daigle left
    Mendoza to meet a group of his friends.         Rodriguez testified that Mendoza
    fabricated a story that Mendoza, Fretz, and Rodriguez left Daigle at a mall. Given
    the detail of the speaker’s account of the events of November 7, 2002 and the
    consistency of that account with Mendoza’s statements to others about his
    fabricated story, the speaker’s personal knowledge of Daigle’s family situation,
    and the speaker’s self–identification as Mendoza, the trial court did not abuse its
    discretion in admitting the recorded telephone conversation as properly
    authenticated evidence. See 
    Mosley, 355 S.W.3d at 69
    .
    Conclusion
    We hold that the evidence is legally sufficient to support Mendoza’s
    conviction for murder. Because no evidence suggests that Fretz and Rodriguez
    were accomplice witnesses, the trial court did not err in failing to include an
    accomplice–as–a–matter–of–fact jury instruction. Because Mendoza’s telephone
    conversation with Detective Stepp was properly authenticated, the trial court did
    15
    not abuse its discretion in admitting it. Accordingly, we affirm the judgment of the
    trial court.
    Jane Bland
    Justice
    Panel consists of Justices Keyes, Bland, and Brown.
    Do not publish. TEX. R. APP. P. 47.2(b).
    16