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judgment of March 13, 2014, be withdrawn and set aside.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
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.
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
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).
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).