Opinion
NO. 01-13-00146-CR
03-13-2014
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
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; and (2) the trial court erred in failing to include an accomplice-as-a-matter-of-fact instruction in the jury charge. Mendoza further complains that the trial court abused its discretion in admitting a telephone conversation between Mendoza and a detective. Finding no error, 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 years old and fifteen years old, respectively. Fretz testified that, at the time, Daigle and Mendoza were best friends, but he thought it possible that Mendoza wanted to fight Daigle in the field due to jealousy over a girlfriend. At the field, Rodriguez walked in front of Fretz, who 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 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 that they needed 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 more 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 then 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 testified that Mendoza fabricated a story that Mendoza, Fretz, and Rodriguez left Daigle at a mall.
Several days after Daigle went missing, a detective 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 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 then drove Hall to a field and told her that he had shot Daigle there. Hall testified that she thought he 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.
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.
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. See Paredes v. State, 129 S.W.3d 530, 538 (Tex. 2004); Delacerda v. State, No. 01-09-00972-CR, 2011 WL 2931189, at *22 (Tex. App.—Houston [1st Dist.] July 21, 2011, no pet.). 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 the sufficiency of the evidence 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 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 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. Id. 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 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 id. at 498-99.
II. Admission of evidence
Standard of Review
We review a trial court's decision to admit or exclude evidence for 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. 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 phone conversation proffered as his statements to a police detective. 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, a detective 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 spoken about running away because of "his situation at home" with his mother and grandmother. The speaker also 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 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 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 the detective was properly authenticated, the trial court did 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).