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judgment of March 13, 2014, be withdrawn and set aside.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




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        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.




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      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.




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                                    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).




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