                           COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                 FORT WORTH


                                  NO. 2-07-024-CR


ISSAC MENDEZ                                                      APPELLANT

                                              V.

THE STATE OF TEXAS                                                      STATE

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           FROM THE 297TH DISTRICT COURT OF TARRANT COUNTY

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                          MEMORANDUM OPINION 1

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                                   I. INTRODUCTION

      Appellant Issac Mendez appeals his convictions for engaging in organized

criminal activity and murder. In one point, Issac contends that the convictions

are based on uncorroborated accomplice witness testimony, and, therefore,

insupportable. We will affirm.




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          … See T EX. R. A PP. P. 47.4.
                  II. F ACTUAL AND P ROCEDURAL B ACKGROUND

      At approximately 3:26 in the early morning hours of June 26, 2005, there

was a drive-by shooting in east Fort Worth. Four people were shot. One of

those four, Dianette Sanchez, a mother of three young children, later died from

her injuries.

      In late September 2005, the police arrested three people in connection

with the shooting—Monica Gauna, Brian Hernandez, and Issac Mendez. Monica

accepted a plea bargain wherein she agreed to testify against Issac and Brian

in exchange for ten years of community supervision. At trial, Monica testified

that she directed Issac, the driver, to the house where the shooting occurred.

Brian was also in the car. She stated that they initially drove by the house to

confirm that people were home, and that, in fact, they saw several people in

the front yard of the house. Monica said that Issac went around the block,

pulled out a gun, and gave it to Brian. According to Monica, Issac then drove

back by the house as Brian opened fire on the crowd.

      At the conclusion of the trial, the jury found Issac guilty of engaging in

organized criminal activity and of murder. After the punishment hearing, the

jury assessed a life sentence against Issac on each count, and the trial court

entered a judgment consistent with the jury’s findings. Issac now appeals.




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                        III. T ESTIMONY F ROM AN A CCOMPLICE

         A.    The Accomplice Witness Rule

         Article 38.14 of the code of criminal procedure establishes that “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.” T EX. C ODE C RIM . P ROC . A NN. art. 38.14 (Vernon

2005).

         In   determining   whether   an   accomplice   witness’s   testimony   is

corroborated, the appellate court must eliminate all accomplice evidence from

the record and determine whether the other inculpatory facts and circumstances

in evidence tend to connect the appellant to the offense. Munoz v. State, 853

S.W.2d 558, 559 (Tex. Crim. App. 1993). An appellate court is to look for

corroboration in all non-accomplice evidence presented by both the prosecution

and defense. Reed v. State, 744 S.W.2d 112, 126 (Tex. Crim. App. 1988);

Adams v. State, 180 S.W.3d 386, 415 (Tex. App.—Corpus Christi 2005, no

pet.).

         Furthermore, such evidence may be either circumstantial or direct, and

apparently insignificant incriminating circumstances may sometimes afford

satisfactory evidence of corroboration. Munoz, 853 S.W.2d at 559; Reed, 744

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at 126. For example, evidence merely showing the motive or opportunity of

the accused to commit the crime is insufficient alone to corroborate the

accomplice witness.     Reed, 744 S.W.2d at 127.         It may, however, be

considered in connection with other evidence tending to connect the accused

with the crime. Id.

      Corroborative evidence need not establish an appellant’s guilt of the

charged offense nor directly link the appellant to the offense, but is sufficient

if it tends to connect the appellant to the offense. Munoz, 853 S.W.2d at 559;

Reed, 744 at 126. Therefore, we apply the “tending to connect” standard of

review, rather than the traditional standards for legal and factual sufficiency,

when reviewing evidence for compliance with article 38.14. Solomon v. State,

49 S.W.3d 356, 361 (Tex. Crim. App. 2001).

      B.    Monica’s Accomplice Witness Testimony

      Monica testified that in the late night hours of June 25, 2005, she was

working at her parent’s bar, Dos Amigos. After midnight, a large party of

people came to Dos Amigos. Two men named Jesse Salinas, Jr. and Randy

Luna were part of the group. Monica was in a relationship with Jesse. Jesse

and Randy were members of the gang the Latin Kings.

      Shortly after the group arrived, Monica’s mother had Monica retrieve

information on Jesse’s bar tab. After evaluating Jesse’s tab, Monica’s mother,

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Jesse, and Randy became engaged in an argument over Jesse’s bill. That

argument evolved into a physical altercation among several people at the bar.

Danny Diaz, Monica’s brother, was involved in the altercation and, in fact,

sustained a deep cut on his right forearm during the fight.

      After the fight ended, Monica drove Danny to the hospital.        At the

hospital, Monica and Danny called Angela Martinez (Danny’s girlfriend), Brian,

and Issac, who all arrived at the hospital shortly thereafter. Danny told Brian

and Issac that “he had got shanked by some Latin Kings.” Danny, Brian, and

Issac were all members of the gang Sur Trece.

      After waiting for a while at the hospital, the group decided that Danny

would receive faster service at a different hospital. So Angela took Danny to

another hospital, while Monica left with Issac, and Brian, who had come to the

hospital in his own vehicle, went to drop his car off at his house. When they

left, Monica said, their understanding was that they (Monica, Brian, and Issac)

were going to go from the hospital to Jesse’s house, where they would perform

a drive-by shooting. They were to use Issac’s car for the drive by. The State

showed Monica a picture of Issac’s car, which was a 1990s-model black Nissan

with tinted windows and a sunroof; Monica identified the vehicle as Issac’s car

and the picture was admitted into evidence.




                                      5
       From the hospital, Issac and Monica followed Brian to his house, where

Brian parked his car and got into the car with Monica and Issac. From Brian’s

house, Issac drove to his own apartment; Issac briefly entered his apartment

before leaving for Jesse’s house. From Issac’s apartment, Monica directed

Issac to Jesse’s house.

       Once they found Jesse’s house, Issac drove past the house to make sure

that people were home. Monica testified that they saw a large group of people

“milling around” in front of the house. Issac made two right turns and parked

the car. At that point, Monica testified, Issac pulled a semi-automatic gun out

from under the seat of his car. Brian, who had put on latex gloves, wiped

down the gun and cleaned the bullets.

       After Brian had prepared the gun, Issac drove the car back toward the

house. As they approached the house, Issac slowed down and “hit the lights”

while Brian went up through the sunroof on Issac’s car and opened fire.

Monica testified that she saw shots being fired back from the house toward the

car.

       From Jesse’s house, the three went back to Issac’s apartment, where

they met up with a girl named Melissa accompanied by “some guy.” A man

named Rick was also at the apartment.       Monica, who had been smoking

marijuana, taking Xanax bars, and drinking, could not remember how she got

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home that night, but remembered being woken up later that morning by the

police at her house.

      C.    The Non-Accomplice Witness Testimony

            1.    Angela Martinez

      Apart from Monica, the jury heard from several other witnesses,

presented by both the State and the defense. One of those witnesses was

Angela Martinez, who was Danny’s girlfriend and at the hospital with Danny,

Monica, and Brian in the early morning hours of June 26, 2005. Angela could

not say for sure that she had seen Issac at the hospital. This is because Issac

has an identical twin brother, and it was difficult for Angela to say whether it

was Issac or his twin at the hospital that night. However, she testified, either

Issac or his twin was at the hospital that night.

      When the group decided to leave the hospital and go to a different

hospital, Angela testified that she and Danny got into Danny’s car, the twin got

into “like a black maybe Nissan or something like that,” Brian got into a gold

car, and she did not see where Monica went. Angela testified that she did not

know anything about a planned shooting.

      2.    Randy Luna

      The jury also heard the testimony of Randy Luna, Jesse’s cousin, who

verified that he was a member of the Latin Kings. Randy was at Dos Amigos

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when the original fight broke out and at Jesse’s house when the shooting

occurred.   Randy testified that his family was celebrating the birthday of

Jesse’s sister, Michelle Salinas, and that the party started out at one bar,

moved to Dos Amigos, and, after the fight at Dos Amigos, moved to the house

where Jesse and his family lived. Shortly after he arrived at the house, Angela

Buxton, Randy’s girlfriend, told Randy that the Angela dating Danny (Angela

Martinez) had called and said that Randy was going to die, a threat that Randy

did not take seriously.     Angela Buxton also testified to the conversation

between herself and Angela Martinez, during which Angela Martinez told Angela

Buxton that Randy was going to die.

      After Randy spoke with his girlfriend, he and Jesse broke off from the

rest of the group and went to a corner of the yard. Not long afterwards, the

shooting occurred.      Randy testified that as soon as he heard the shots, he

dropped to the ground but that he looked up and saw the car pass by. Randy

said that the car passed under a street light, allowing him to see the entire car,

which he described as a black Mazda 626 or Nissan Maxima. Randy stated

that he recognized the car as soon as he saw it. He explained that the car had

distinctive tire rims, which, as someone who had worked at tire stores for

approximately ten years, he had noticed in the past and then recalled at the

time of the shooting.

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      Randy further stated that he knew the car belonged to one of “the twins”

and that, while he did not know which twin it belonged to, he only ever saw

Issac driving the car both before and after the shooting. In fact, Randy testified

that as he and his girlfriend were going to work on the Monday after the

shooting, he passed by a parking lot and pointed out the car to his girlfriend,

saying, “There goes that car that came by the house.” Issac was getting into

the car.

      When questioned about his ability to distinguish between Issac and his

identical twin, Randy stated that he could tell the difference between the twins

because he had spent some time with them and knew that one was thinner

than the other. Randy stated that while he did not know the twins by name,

he knew that the bigger of the twins was the one in the courtroom at trial and

that it was the bigger one he always saw driving the car.         At trial, Randy

proved his ability to tell the twins apart by distinguishing them in photos when

cross-examined by the defense.

      3.    Rick Smith and Melissa Lopez

      Although their testimony placed Issac at his apartment at the time of the

shooting, both defense witnesses Rick Smith and Melissa Lopez testified that

they met up with Issac at his apartment in the early morning hours of June 26,

2005. Melissa verified that Issac was driving his black Maxima that night.

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      4.    Michelle Salinas

      Michelle Salinas is Jesse Salinas’s younger sister and was at the house

the night of the shooting. Michelle testified that the car used in the shooting

was a dark car with shiny tire rims. Furthermore, Michelle stated, she noticed

the car that night before the shooting and noted that the car moved from the

right to the left lane and turned off its lights right before the shooting started.

      5.    Officer Eloy Morales

      The jury additionally heard the testimony of several police officers who

were involved in this case. Officer Eloy Morales was the first patrol officer

dispatched to the scene of the shooting at 3:26 a.m. on June 26, 2005.

Officer Morales testified about how he preserved the crime scene and requested

a crime scene investigator. The officer also spoke with people at the scene,

who said that a dark-colored vehicle was used in the drive-by shooting. Officer

Morales also spoke with Jesse Salinas, Sr., who said that he had fired shots

back at the car.

      6.    Officer David Ukle

      Officer David Ukle was the crime scene investigator at the scene that

morning. Officer Ukle said that he recovered two sets of bullet casings from

the scene—a .40 caliber casing and a nine-millimeter casing.         Officer Ukle

determined that the nine-millimeter bullets were fired toward the house and that

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the .40 caliber bullets were fired from the house toward the street.          Both

casings, Officer Ukle said, were from semi-automatic guns.

      Officer Ukle additionally testified that there are several steps to preparing

a semi-automatic gun for firing. The casings recovered from the crime scene,

Officer Ukle said, did not have any fingerprints on them. He testified that a

person could wipe down the bullets and cartridge casings and that such is done

to make identification difficult.

      7.    Michael Ward

      Michael Ward, a forensic scientist, examined the bullet casings that

Officer Ukle recovered from the scene. Ward compared the casings to the guns

that Jesse Salinas, Sr. had given to the police and determined that the .40

caliber casings were from Salinas’s gun and that the nine-millimeter casings

were from an unidentified gun. Ward additionally testified that a nine-millimeter

bullet had killed Dianette.

      8.    Detective Roger Iker

      Detective Roger Iker was the detective originally placed on the case on

June 26, 2005. Detective Iker testified that witnesses on the scene saw the

shots fired from a black car with a sunroof and tinted windows. The witnesses

also revealed to the detective that the car had 17-inch custom tire rims, a




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squared-off back end, and was generally described as being an early ‘90s model

car, “like the early ‘90s Mitsubishi Galant [or] Nissan Maxima.“

      In his investigation, Detective Iker discovered that people from the Salinas

party had been involved in a bar fight at Dos Amigos. Working off of the theory

that the shooting was in retaliation for the fight, the detective looked up the

owners of the bar—the Gaunas—and, later on the morning of June 26, went

to their house, where he questioned Monica, Danny, and Danny’s father.

Detective Iker stated that, at the Guanas’ house, he noticed that Danny’s hand

was bandaged, and, when questioned, Danny said that had been cut in a fight

at the bar the night before.

      9.    Detective John McCaskill

      Detective John McCaskill was the officer who took over the investigation

when Dianette passed away. (She was not killed on the scene, but died five

weeks later at the hospital from her injuries.) Detective McCaskill testified that

three to four days before the shooting, Issac filed a police report stating that

someone had broken into his car. In the report, Issac described his car as a

1990 black Nissan Maxima. The detective also said that he questioned Angela

Martinez about the car that Monica got into at the hospital on June 26, 2005.

According to detective McCaskill, Angela said that Monica had gotten into the




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car with one of the twins.     When shown a picture of Issac’s car, Angela

identified it as the car in which Monica had left the hospital.

      Detective McCaskill also testified about how, during the course of his

investigation, he looked into the phone calls made from Monica’s phone on

June 26. The detective noticed that she had made calls to Brian Hernandez.

He also stated that before he spoke with Monica, he had been given Issac’s and

Brian’s names as people involved in the shooting, and that Monica’s name was

provided by a third party later in the investigation.

      D.      Analysis of the Non-Accomplice Testimony

      Eliminating all of Monica’s accomplice testimony from the record,2 the

non-accomplice evidence in this case is more than sufficient to meet the

corroboration requirements of article 38.14. See T EX. C ODE C RIM. P ROC. A NN.

art. 38.14; Munoz, 853 S.W.2d at 559. Randy’s testimony established that

there was a bar fight that night at Dos Amigos, and Detective Iker’s testimony

established that, the next morning, Danny’s hand was bandaged and Danny

explained that it was cut in a fight at the bar. This evidence supported the

motive that Monica had provided for the shooting.




      2
          … That Monica was an accomplice is not disputed.

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      Detective McCaskill’s testimony regarding Monica’s cell phone records

supported Monica’s claim that she had called Brian after the bar fight, and

Angela Martinez’s testimony established that Brian and one of “the twins” were

at the hospital with Danny and Monica that night.         Furthermore, Angela

Martinez told Detective McCaskill that Monica had left the hospital with the

twin and had additionally identified Issac’s car as the car in which Monica had

ridden. Angela’s own testimony was that the twin left in a black Nissan.

      Randy and Angela Buxton also testified about a cell phone call made by

Angela Martinez to Angela Buxton that night in which Martinez stated that

Randy was going to die. This testimony corroborated Monica’s claim that there

was a plan to go to Jesse’s house and commit a shooting.

      There was also ample testimony about Issac’s car being the one involved

in the drive-by shooting.   Detective McCaskill’s testimony about the police

report that Issac had filed four days before the shooting established that Issac

claimed ownership of a 1990 black Nissan Maxima. Officer Morales’s and

Detective Iker’s testimony was that witnesses at the scene said that a car

exactly matching the description of Issac’s car—a black early ‘90s Nissan

Maxima—was involved in the shooting.

      Additionally, Randy’s testimony independently established that Issac’s car

was the one involved in the shooting. Randy’s testimony that he recognized

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the distinctive tire rims on the car, immediately knew who the car belonged to,

and saw Issac driving the car the day after the shooting by itself connected

Issac to the shooting. See Munoz, 853 S.W.2d at 559.

      Even the smallest of details in Monica’s testimony were corroborated.

For example, Monica’s testimony that Issac turned off the car’s headlights

immediately before Brian started shooting was exactly corroborated by Michelle.

Additionally, Monica’s testimony that someone fired shots back at the car was

corroborated by Officer Morales, who said that Jesse Salinas, Sr. admitted to

firing at the car as it sped away.

      Forensic evidence also corroborated Monica’s story. Michael Ward, the

forensic scientist, stated that he determined that the bullets fired toward the

house came from a nine-millimeter semi-automatic gun. Monica had stated that

Issac gave Brian a semi-automatic. Also, Ward testified that the bullet casings

did not have any fingerprints on them, which corroborated Monica’s testimony

about Brian cleaning them beforehand.

      The testimony of Rick Smith and Melissa Lopez additionally corroborated

Monica’s testimony that, after the shooting, she returned to Issac’s apartment

where they met up with a lady named Melissa and a man named Rick. Finally,

Monica’s testimony that she was awakened by the police later that morning

was verified by Detective Iker.

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      All of this non-accomplice testimony amounts to at least some evidence

tending to connect Issac to the drive-by shooting and murder of Dianette and

the associated organized criminal activity offense. See Solomon, 49 S.W.3d

at 361. The corroboration requirements of article 38.14 were therefore met in

this case. See T EX. C ODE C RIM. P ROC. A NN. art. 38.14; Solomon, 49 S.W.3d at

361. Accordingly, we hold that the State presented sufficient non-accomplice

corroborating evidence to support accomplice Monica Guana’s testimony and

overrule Issac’s sole point.

                                IV. C ONCLUSION

      Having overruled Issac’s sole point, we affirm the trial court’s judgment.




                                                  PER CURIAM

PANEL F:     WALKER, J.; CAYCE, C.J.; and MCCOY, J.

DO NOT PUBLISH
T EX. R. A PP. P. 47.2(b)

DELIVERED: March 20, 2008




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