Opinion issued November 10, 2004




                                    In The

                           Cmsri nf Appsala
                                   For The

                       Jurat Sfairfrt of ^ma



                            NO. 01-03-00783-CR




                     MIKE MENDOZA, JR., Appellant




                     THE STATE OF TEXAS, Appellee



                   On Appeal from 262nd District Court
                         Harris County, Texas
                       Trial Court Cause No. 952290




                       MEMORANDUM OPINION


     Appellant, Michael Mendoza, Jr., was convicted ofmurder by a jury. The trial
court assessed punishment at life in prison. In two points oferror, appellant contends

the evidence is legally and factually insufficient to support his conviction.

      We affirm.


                                    Background

      On the evening of January 18, 2003, complainant, Isaac Benavides, and his

brother, Frank Moreno, went to a gathering at the home of Gerardo Garcia to watch

a boxing match on television. After the match, people congregated inside and outside

the house talking and drinking. In the early morning hours, five men arrived at the

residence in two vehicles. These men were appellant, appellant's brother Josue

Mendoz, and three friends, Richard Espinoza, Sam Alvarez, and Reynaldo Rodriguez.

Jessica Martinez also joined the gathering.

      After Martinez arrived, an argument ofuncertain origins broke out in the crowd

of men gathered in the front yard of the residence. The conflict evolved with the

complainant being beaten by appellant, Josue, Espinoza, and possibly Rodriguez.

Neither Moreno nor Garcia could come to the complainant's aid during the beating

because Alvarez was holding the crowd at bay with a handgun.             The conflict

culminated with the complainant being repeatedly stabbed in the right side of his

chest and abdomen, resulting in his death.

      After the stabbing, appellant, Josue, Espinoza, Rodriguez, andAlvarez quickly
left the scene before the police arrived. Following an investigation, the police

developed appellant as the person who had stabbed the complainant. Appellant was

ultimately charged by indictment with murder.

      The State presented numerous witnesses at trial. Jessica Martinez testified that,

when she arrived at the Garcia residence, appellant, Josue, Espinoza, Rodriguez, and

Alvarez were in the yard. Martinez recalled that appellant shook her hand and spoke

to her when she arrived. Martinez stated that she went into the house and did not

realize that an altercation was taking place outside until she left the house and saw

a man waving a gun. Being frightened, Martinez went back inside and hid in a

bathroom. Martinez testified that when she went back outside, she saw appellant,

Josue, Espinoza, Rodriguez, and Alvarez running to their vehicles to leave. She did

not see the complainant being beaten or stabbed.

      When the five men arrived at the house, Frank Moreno testified that he

recognized only one of them: Reynaldo Rodriguez. When he heard an argument

beginning, Moreno walked the children who were present inside the house. Moreno

heard a bottle break and fighting outside. Moreno testified that, when he went back

outside, he saw three men beating the complainant. Moreno tried to help his brother

but was held at gunpoint by a man he later identified as Alvarez. Moreno told the

jury that he saw two men punching his brother in the face and upper body. He saw
a third man, whom he could not identify, making a stabbing motion on his brother's

right side. After he saw this motion, Moreno saw his brother "drop." After the five

men left, Moreno ran to his brother, lifted his brother's shirt, and saw "puncture

wounds" in his brother's rib cage and abdomen.

      Gerardo Garcia testified that he left his house after the boxing match to pick

up his wife. When he returned, he saw appellant, Josue, Espinoza, Rodriguez, and

Alvarez in his yard.     Soon after, an argument developed between Garcia and

Espinoza. Garcia saw Espinoza throw a punch at the complainant. Espinoza,

appellant, and Josue then "jumped" the complainant and began beating him. At the

same time, Garcia stated that Alvarez was pointing a gun at him and Moreno.

Although all three men were "jabbing" the complainant, Garcia testified that he saw

appellant making a "jabbing" motion by the complainant's ribs while the other two

men were beating the complainant in the face. Although he never saw a knife, Garcia

described the motion used by appellant as a "stabbing jab."

      Rodriguez recalled at trial that he saw appellant and Josue in a fist fight with

the complainant. He stated that the complainant had started the fight by kicking

Josue in the chest and that, at one point, before the fight, the complainant had a gun.

Rodriguez stated that he did not see a knife or any type of stabbing motion used on

the complainant. After the complainant fell, Rodriguez left the Garcia residence in
a vehicle with Espinoza and Alvarez. Appellant and Josue left in a separate vehicle.

After driving about five blocks, both vehicles pulled over. Rodriguez testified that

he and Alvarez walked over to the other vehicle and spoke to appellant through the

passenger-side window. At that point, Rodriguez realized that appellant had stabbed

the complainant when he saw appellant wiping the knife on his shirt. According to

Rodriguez, appellant was angry. When the men asked appellant why he had stabbed

the complainant, appellant stated that he did not know why. Rodriguez then got into

the car with appellant and Josue. Rodriguez saw appellant throw the knife out ofthe

car. Rodriguez contacted the police and told them the location where appellant had

thrown the knife.


      Detective C. Zucha testified that he was contacted by Rodriguez the day after

the complainant was killed. Rodriguez told Zucha where appellant had thrown the

knife. Based on the information provided by Rodriguez, the police recovered the

knife. The State presented testimony that DNA testing showed that blood found on

the recovered knife was that of the complainant.

      Sam Alvarez also testified for the State regarding the events surrounding the

complainant's killing. Alvarez admitted to "waving" a gun at Moreno and Garcia but

stated that he had felt threatened by the crowd that had gathered during the fight. The

record reflected that Alvarez was wearing an orange prisoner's jumpsuit at trial.
Alvarez told the jury that he had been charged with aggravated assault with a deadly

weapon but that the district attorney's office reduced the charge to a "Class A assault"

in exchange for Alvarez's testimony.

      Alvarez recalled that he saw the complainant pointing a gun at Espinoza.

Alvarez took the gun from the complainant and a fist fight ensued between the

complainant and Espinoza. Then, appellant and Josue joined the fight, Alvarez saw

that the complainant had his back to a car and that the three other men—appellant,

Josue, and Espinoza-—were "beating on him." Alvarez testified that he saw appellant

use a jabbing motion on the complainant.

      Alvarez stated that he left in a vehicle with Rodriguez and Espinoza after the

complainant fell to the ground. Appellant and Josue followed in another vehicle. A

couple of blocks from the scene, Alvarez told Espinoza to stop. The vehicle with

appellant and Josue also pulled over. Alvarez went to the open passenger-side

window of appellant's vehicle and saw appellant taking off his shirt. Alvarez also

saw that appellant had a knife. Alvarez then observed appellant cleaning blood from

the knife with the shirt. When Alvarez asked appellant why he had stabbed the

complainant, appellant did not answer but shook his head.

      Alvarez testified that, as part of his agreement with the State to reduce the

charges against him, Alvarez agreed to "wear a wire" and record a conversation with
appellant. The State introduced an audiotape ofthe conversation into evidence. The

tape was played for the jury.

      During the taped conversation, Alvarez told appellant that he had heard that the

complainant was stabbed 38 times.         Appellant stated that he did not stab the

complainant 38 times but had "hit" the complainant about four times.

      The State also introduced the complainant's autopsy report into evidence and

elicited the testimony ofassistant medical examiner Dr. Dwayne Wolf. This evidence

showed that the complainant had died as a result of the stab wounds that he had

received to the right side of his chest and abdomen.

                                 Appellant's Issues

      In his initial statement ofthe issues, appellant contends that the trial court erred

in denying his motion for directed verdict because the evidence was legally and

factually insufficient to support his murder conviction. We review a complaint that

the trial court erred in denying a motion for instructed verdict as a challenge to the

legal, not factual, sufficiency ofthe evidence. See Williams v. State, 937 S.W.2d 479,

482 (Tex. Crim. App. 1996) (citing Cook v. State, 858 S.W.2d 467, 470 (Tex. Crim.

App. 1993)); see also Youens v. State, 988 S.W.2d 404, 407 (Tex. App.—Houston

[1st Dis't] 1999, no pet.). However, we look to an appellant's argument to determine

the nature of his complaints, including any subsidiary issues, rather than the points
oferror alone. Sanchez v. State, 98 S.W.3d349,355 (Tex. App.—Houston [IstDist.]

2003, pet. ref d); see also TEX. R. APP. P. 38.1 (e) ("The statement ofan issue or point

will be treated as covering every subsidiary question that is fairly included.").

      In support ofhis first point oferror, appellant argues that, absent the testimony

of the "accomplice" witnesses—Reynaldo Rodriguez and Sam Alvarez—the

remaining evidence is legally insufficient to support his murder conviction.

Appellant does not contend that the evidence is legally insufficient to support his

conviction when Rodriguez's and Alvarez's testimony is taken into consideration.

Rather, appellant contendsthat absent the accomplicewitness testimony, the evidence

is legally insufficient.    Given appellant's substantive argument, we construe

appellant's first point of errorto be a challenge that the State failed to corroborate the

accomplice-witness testimony.1 Thus, only ifwe conclude that the State did notoffer

i
      It is unclear whether appellant considers Rodriguez and Alvarez to be
      accomplices as a matter of law or as a matter of fact. In any event, appellant
      did not request an instruction on the accomplice-witness rule and none was
      included in the jury charge. The Court of Criminal Appeals has implied this
      failure results in waiver ofthe issue. See Hernandez v. State, 939 S.W,2d 173,
      180 n- 2 (Tex. Crim. App. 1997) (questioning appellate court's review of
      accomplice witness testimony in the absence of such instruction and citing
      Boozer v. State, 717 S.W.2d 608, 610 (Tex. Crim. App. 1984) (holding
      sufficiency of evidence is to be measured by charge that was given) overruled
      by Malik v. State, 953 S.W.2d 234 (Tex. Crim. App. 1997)). Because Boozer
      has been expressly overruled by Malik, and because the Court of Criminal
      Appeals in Hernandez did not overrule its opinion in Hammonds v. State, 316
      S.W.2d 423, 424 (Tex. Crim. App. 1958) (holding where no accomplice
                                            8
sufficient corroborating evidence regarding the "accomplice" witness testimony need

we address whether the remaining evidence was legally sufficient.

      In support of his second point of error, appellant cites the testimony of several

witnesses as weighing against his conviction. Fairly considering the argument

supporting appellant's second point of error, we construe that point as a challenge to

the factual sufficiency of the evidence. See TEX. R. APP. P. 38.1(e); Sanchez, 98

S.W.3dat355.


               Corroboration of Accomplice-Witness Testimony

      Code of Criminal Procedure article 38.14 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 ofthe offense." TEX. CODE CRIM.

PROC. Ann. art. 38.14 (Vernon 1979). In assessing the sufficiency of corroborative

evidence, we eliminate the testimony of the accomplice witness from consideration

and examine the testimony of other witnesses to ascertain whether the

non-accomplice evidence tends to connect the accused with the commission of the


      witness charge was requested or given, a reviewing court, "in passing upon the
      sufficiency ofthe evidence, must treat the testimony of [an accomplice] as that
      of an accomplice witness and find sufficient evidence from other sources
      tending to connect appellant with the commission of the offense"), we will
      apply the accomplice-witness rule in this case.
offense. Hernandez v. State, 939 S.W.2d 173, 176 (Tex. Crim. App. 1997). "The

non-accomplice evidence need not be sufficient itselfto establish the accused's guilt

beyond a reasonable doubt." Id. The law only requires that some non-accomplice

evidence tends to connect the accused to the commission of the offense. Id. All the

facts and circumstances in the case, both factual and circumstantial, may be

considered when determining whether the accomplice testimony was properly

corroborated. See Reed v. State, 1AA S.W.2d 112, 126 (Tex. Crim. App. 1988).

      In the present case, the State produced non-accomplice testimony that an

offense was committed, that appellant was present during its commission, that

appellant participated in the beating of the complainant, and that at least one non-

accomplice witness, Gerardo Garcia, saw appellant using a stabbing motion in the

region of the complainant's body that received the fatal stab wounds.

      Although appellant claims that the non-accomplice evidence is both legally and

factually insufficient to sustain his conviction, the Court of Criminal Appeals has

declined to impose the legal and factual sufficiency standards on a review of

accomplice witness testimony under article 38.14. Cathey v. State, 992 S.W.2d 460,

462 (Tex. Crim. App. 1999). "The accomplice-witness rule is a statutorily imposed

sufficiency review and is not derived from the federal or state constitutional

principles that otherwise define legal and factual sufficiency review." Id. at 462-63.

                                          10
The burden established by the Legislature is that other evidence tend to connect the

defendant with the offense, and the State met that burden here. See id. at 463.

Having reviewed the circumstances of the offense and the testimony from the

non-accomplices, we conclude that sufficient non-accomplice evidence tends to

connect appellant to the commission ofthe offense, as required by article 38.14. See

Hernandez, 939 S.W.2d at 178. Because appellant only contends that the evidence

was legally insufficient without the accomplice testimony, we need not make the

determination whether the evidence was legally sufficient when all the evidence is

considered, including the accomplice-witness testimony.

      We overrule appellant's first point of error.

                       Factual Sufficiency of the Evidence

      In his second point of error, appellant contends that the evidence is factually

insufficient to support his conviction. A person commits the offense ofmurder ifhe

intentionally or knowingly causes the death of an individual, or ifhe intends to cause

serious bodily injury and commits an act clearly dangerous to human life that causes

the death of an individual. TEX. PEN. CODE ANN. § 19.02(b)(1), (2) (Vernon 2003).

      We begin the factual sufficiency review with the presumption that the evidence

supporting the jury's verdict is legally sufficient, Clewis v. State, 922 S.W.2d 126,

134 (Tex. Crim. App. 1996). We view all of the evidence in a neutral light, and we

                                          11
will set the verdict aside only if the evidence is so weak that the verdict is clearly

wrong and manifestly unjust, or the contrary evidence is so strong that the standard

ofproofbeyond a reasonable doubt could not have been met. Escamilla v. State, 143

S.W.3d 814, 817 (Tex. Crim. App. 2004) (citing Zuniga v. State, 144 S.W.3d 477,

481 (Tex. Crim. App. 2004)). We must defer appropriately to the fact-finder to avoid

substituting our judgment for its judgment. Zuniga, 144 S.W.3d at 482. Our

evaluation may not intrude upon the fact-finder's role as the sole judge ofthe weight

and credibility accorded any witness's testimony. See Cainv. State,958 S.W.2d 404,

407 (Tex. Crim. App. 1997). The fact-finder alone determines what weight to

contradictory testimonial evidence because that question depends on how the fact

finder evaluates credibility and demeanor. Id. at 409. As the determiner of the

credibility of the witnesses, the fact-finder may choose to believe all, some, or none

of the testimony presented. Id. at 407.

      In conducting a factual-sufficiency review, we must discuss the evidence that,

according to appellant, most undermines the jury's verdict. See Sims v. State, 99

S.W.3d 600, 603 (Tex. Crim. App. 2003).            Appellant cites the following as

undermining the jury's guilty verdict in this case: (1) the testimony of the State's

witnesses that they did not see a knife used during the fist fight, or specifically that

they did not see appellant wield a knife when he was hitting the complainant; (2)

                                           12
Frank Moreno's testimony that, during the fight, it was dark, he did not have a good

view, and could not positively identify the person he saw using the stabbing motion

on the right side of the complainant; (3) the testimony that witnesses saw appellant

using "stabbing" and "jabbing" motions during the fight, which could suggest that

appellant was simply punching the complainant, not stabbing him; (4) the lack of

physical evidence, such as DNA or fingerprints, linking appellant to the knife

recovered by the police; (5) the only DNA recovered from the knife was from the

blood ofthe complainant, suggesting that the knife belonged to the complainant and

failing to circumstantially link appellant to the offense; and (6) the audiotaped

conversation between Alvarez and appellant in which appellant states that he "hit"

the complainant four times and "could not say" why he killed the complainant,

suggesting that appellant merely punched the complainant but did not stab him.

      The evidence that is favorable to appellant must be viewed in the context ofthe

entire record and not in isolation. As set forth in the background section of this

opinion, the State presented evidence showing that witnesses (i.e., Garcia and

Rodriguez) saw appellant using stabbing motions on the right side of the

complainant's torso. The autopsy and medical examiner evidence showed that the

complainant was stabbed eight times in his right chest and abdomen and that the

complainant died from these injuries. The witnesses who saw the "stabbing" motion

                                         13
used by appellant distinguished this motion from the punching and hitting motion

used by Josue and Espinoza when they were beating the complainant in his Upper

body and face. From such evidence, the jury could have reasonably inferred that

appellant had not only punched the complainant, but had stabbed him in the right

side, resulting in his death.

      Although the knife recovered by the police had no physical evidence linking

appellant totheweapon, Alvarez andRodriguez testified thattheysawappellant with

a knife immediately following the stabbing while he sat in his brother's car a few

blocks from the crime scene. At that time, both men saw appellant clean the knife

with his shirt. Shortly thereafter, Rodriguez saw appellant throw the knife from the

car. Rodriguez told Detective Zucha where appellant had disposed ofthe knife. The

police later recovered a knife from that location which had the complainant's blood

on it. This evidence would support an inference by the jury that the knife recovered

by police was the knife appellant had in his possession in the vehicle and that the

knife had been used to stab the complainant.

      Appellant correctly points out that on the audiotape played for the jury he

stated that he had "hit" the complainant four times. However, this statement was

made in response to an allegation that the complainant had been stabbed 38 times.

Appellant told Alvarez that he had not stabbed the complainant 38 times, rather, he

                                         14
had "hit" him only four times. When viewed in context, it would be reasonable for

the jury to infer that "hit" meant stabbed.

      We hold that the jury's verdict in this case is not irrational, or clearly wrong

and manifestly unjust, or contrary to evidence so strong that the standard of proof

beyond a reasonable doubt could not have been met. See Escamilla v. State, 143

S.W.3dat817.


      We overrule appellant's second point of error.

                                     Conclusion

      We affirm the judgment of the trial court.




                                        Laura Carter Higley
                                        Justice


Panel consists of Justices Nuchia, Hanks, and Higley.

Do not publish. Tex. R. App. P. 47.2(b).




                                           15
                              Court of App&tla
                          Mv&t Hfstroi of ©gins

                                    JUDGMENT


MIKE MENDOZA, JR., Appellant                 Appeal from the 262nd District Court of
                                             Harris County, Texas. (Tr. Ct. No.
NO. 01-03-00783-CR                    V.     952290). Panel consists of Justices
                                             Nuchia, Hanks, and Higley. Opinion
THE STATE OF TEXAS, Appellee                 delivered by Justice Higley.

      The cause heard today by the Court is an appeal from the judgment signed by
the court below on July 23, 2003. After submitting the cause and inspecting the
record of the court below, it is the opinion of this Court that there was no reversible
error in the judgment. It is, therefore, CONSIDERED, ADJUDGED, and
ORDERED that the judgment of the court below be, in all things, affirmed.

      It is further ORDERED that this decision be certified below for observance.


      Judgment rendered by panel consisting ofJustices Nuchia, Hanks, and Higley.

Judgment rendered November 10, 2004.
