Tienda v State of Texas

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Read this case How cited TIENDA v. State, Tex: Court of Appeals, 5th Dist. 2010

RONNIE TIENDA, JR., Appellant,v.

THE STATE OF TEXAS, Appellee.

No. 05-09-00553-CR.

Court of Appeals of Texas, Fifth District, Dallas.

Opinion issued December 17, 2010.

Before Justices MORRIS, MOSELEY and MYERS.

DO NOT PUBLISH. TEX.R.APP. P.47

OPINION

Opinion By Justice MORRIS.

A jury convicted Ronnie Tienda, Jr. of murder. In two issues onappeal, appellant complains the evidence against him is factuallyinsufficient and the trial court erred in admitting certain evidence.Concluding appellant's arguments are without merit, we affirm the trialcourt's judgment.

Factual Background

The night of the complainant's murder, both he and appellant were ata nightclub with separate groups of friends. The complainant and aman called "Nu-Nu" exchanged words and gestures as the firstnightclub closed and both groups left to drive to a second club. Thecomplainant was driving a red Dodge Magnum with his cousin'shusband Mario Benitez in the passenger seat and his friend HectorGonzalez in the back seat. Shots fired at the car from at least oneother vehicle hit the complainant, causing him to lose control of theMagnum. At the hospital where the complainant was declared dead,Gonzalez told his girlfriend that appellant and Nu-Nu had shot at theircar.

According to Gonzalez's testimony at trial, before the shooting a GMCYukon pulled up near the Magnum as they were driving down thehighway. Nu-Nu started "hanging out the window, talking noise andstuff." The Yukon was traveling with a black Lincoln car and a whiteLincoln truck. The complainant sped up and moved away from theYukon. After a while, Gonzalez testified, they heard gunshots behindthem, and the back windshield of the Magnum shattered. Gonzalezducked. Then he saw the white Lincoln truck pass them as thepassengers inside fired shots. The white truck moved on, and thenthey saw the passengers in the black Lincoln shooting at them.Gonzalez stated that when he saw appellant hanging out the frontpassenger window of the black Lincoln holding a pistol with a long

clip, he began to shoot at the Lincoln. After the complainant was shotand the Magnum crashed into a barricade, Gonzalez and Benitez gotout of the Magnum and called an ambulance. Gonzalez had thrownhis gun out the window.

In his statement to police the night of the shooting, Gonzalez said thathe saw Nu-Nu hanging out of the window of the black Lincoln and aman called "Juvie" doing the shooting, rather than appellant.Gonzalez said nothing to police about appellant's involvement in theoffense on the night of the shooting. He acknowledged that hismemory of the incident was fresher two hours after it happened thanat the time of trial. He stated, however, that there was no doubt in hismind that appellant was shooting on the night of the murder. Hepicked appellant out of a photographic lineup the night of the

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shooting, telling police only that he had seen him before "at the club."Gonzalez testified that he had heard that appellant and Nu-Nu weremembers of the gang Tango Blast. He saw them "throwing" gangsigns at him and the complainant at the club. The gang signresembled a star made with the gang member's hands.

Mario Benitez testified that he was in the car with appellant andGonzalez when appellant's group "just pulled up and startedshooting." Benitez stated, "At the end when I started looking up a littlefrom the gunshots, I [saw appellant's] face coming out [of] the

window." When he was first shown a photographic lineup, Benitezwas unable to identify appellant. Benitez stated this was because thepicture they had shown him was a "juvenile picture" and appellant hadmatured since that time.

The night of the offense, Benitez did not tell police he had seenappellant shooting into the Magnum. In his statement, he wrote thatthe shot that hit the complainant came from a white truck. Benitezclaimed this was because he was "going crazy" that night, and hefurther claimed that he tried to tell the detective what had happenedthe next day when he was more clearheaded. Benitez claimed henever saw Gonzalez fire a weapon from the Magnum or throw a gunfrom it. He explained that this was because there were so many shotsfired into the car. Benitez did not know whether it was a shot from thefirst vehicle or the second that actually struck the complainant. Hetestified that he knew appellant shot at the complainant, but he neversaw Nu-Nu with a gun that night. Benitez stated that he, too, had

seen members of appellant's group throwing gang signs toward hisgroup at the club.

Gerrado Garcia testified that he was with appellant's group at the firstclub on the night of the shooting. Garcia left the club in a whiteLincoln truck with Louis Quinones and a guy named "Crusty" or"Musty" in the back seat. Garcia was driving. As they got on thehighway to head to the second club, Garcia claimed, Musty shot agun up in the air two times. Later on, Garcia saw the complainant'sred car pass them, followed by approximately four vehicles. Then, asGarcia's truck passed the complainant's car, he saw a group ofvehicles around the car. He claimed he saw a gray Mustang, a whitecar, and a black Lincoln LS. The occupants of the vehicles wereshooting at the complainant's car and someone in the complainant'scar was shooting back.

Garcia recalled telling police that he saw appellant hanging out of theback passenger window of a car holding what appeared to be anassault rifle and shooting at the Magnum. He testified at trial,however, "I can't say it was him shooting. I remember it was a blackcar shooting at the red car, but I can't . . . accuse somebody ofshooting somebody. I know that both cars were shooting at eachother." On the night of the shooting, Garcia gave explicit details ofappellant's gang involvement and the tattoo on the back of appellant'shead. When asked at trial if he was trying to "water down" what hesaw out of fear for what might happen to him, Garcia replied, "I mean,I can't say that, but I mean, I know what happened that night." Garciaclaimed he did not know how the back windshield of the Magnum wasshattered.

Louis Quinones confirmed that he left the club in a white Lincoln truckwith a man he knew as "G.G." and a man known as "Musty" or"Crusty." Quinones claimed that he was sitting in the back seat of thewhite truck and Musty was sitting in the front passenger seat. Hestated that there were two or three shots fired from the truck as it goton the highway, but he claimed he did not know who fired the shotsbecause the music was too loud in the backseat.

The night of the murder, Quinones told police he saw a Tahoe, aMustang, and a Lincoln approach the complainant's car on thehighway. Then he saw flashes coming from the vehicles and heardgunshots but he could not tell which vehicle they were coming from.At trial, however, Quinones testified that he had not seen the vehiclesapproach the complainant's Magnum. He claimed he merely saw thevehicles pass his truck and heard the gunshots. He also admittedseeing the Magnum crash into the highway wall after he heard theshots.

City of Dallas police officer Cindy Arispe testified that when she


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arrived at the scene of the shooting, she was able to speak withGonzalez and Benitez. They told her that two vehicles hadapproached the Magnum. First, they said they saw a man leaning outthe window of a white Lincoln pickup truck and flashing gang signs atthem, while the complainant tried to drive away. Next, the truck spedup near them again and the same man started firing inside their car.Afterward, someone started firing out of a black mid-size to full-sizesedan, but they could not see because they were ducking to avoidbeing shot. They described the suspect in the white truck as firingwhat appeared to be a rifle and they mentioned that the man had the

number 18 tattooed on the back of his head. At the time, both menwere very anxious and concerned about the complainant, who wasbeing treated by paramedics at the scene.

The complainant's sister, Priscilla Palomo, testified that she foundappellant's MySpace accounts based on "a lead." She foundMySpace pages containing photos of appellant and commentsallegedly made by him when she searched for him under "Smiley," his

nickname.[1] The State produced no other witnesses to identify theMySpace pages. The district attorney's office subpoenaed recordsassociated with ID user numbers from his MySpace accounts. Thetrial court admitted these records into evidence over appellant'sobjection. Several profiles were found for appellant on MySpace. Hisname was listed as "ron mr. t", "ron Mr.T" and "SMILEY FACE." Hiscity was listed as "D TOWN," "D*Town," and "dallas." And his variousemail addresses incorporated the name Smiley or Ronnie Tienda, Jr.

On one MySpace page, there was a photograph of appellant with thecaption, "If you ain't blasting, you ain't lasting," and the notation, "Restin peace, David Valadez [the complainant]." There was a bar near thenotation that allowed MySpace users to play a song, which Palomotestified was the song that the complainant's family had used at hismemorial service. Another MySpace page contained the statement,"Yeah, . . . I keep it gangster, even after Hector shot at Nu-Nu at [thesecond club], we still didn't tell. And I know Jesse told him we wasthere, cause we saw them at the club, but it's cool if I get off, man."Another comment read, "Yeah, . . . everyone was busting and theyonly told on me." Still other comments mentioned appellant'selectronic monitor and "Hector snitching on me." The photographs ofappellant on the MySpace pages also included one where he wasdisplaying his electronic monitor and another captioned "str8 outta jailand n da club." Palomo admitted there was no way to verify who isthe author of anything written on a MySpace page.

Daniel Torres, a gang unit officer with the Dallas Police Department,testified that the photographs of appellant posted on MySpacedemonstrated his membership in the Dallas branch of the Tango Blastgang. He stated that members of the gang often stay in contactthrough MySpace. He noted that the number 18 tattooed on the backof appellant's head was a reference to the North Side 18th StreetGang. Torres explained that the phrase, "If you ain't blasting, you ain'tlasting" is a phrase they use against other gangs to let them knowthat if they are not part of their group, "you're not going to last."

Discussion

In his first point of error, appellant complains that the evidence againsthim is factually insufficient. The Texas Court of Criminal Appealsrecently overruled its opinion in Clewis v. State, 922 S.W.2d 126 (Tex.Crim. App. 1996), that had adopted a factual sufficiency standard.The court held that the legal sufficiency standard ofJackson v.Virginia, 443 U.S. 307 (1979), is now "the only standard that areviewing court should apply in determining whether evidence issufficient to support each element of a criminal offense." Brooks v.State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010). We will thereforenot address appellant's factual sufficiency challenge but will addressthe legal sufficiency of the evidence in the interest of justice.

In reviewing a challenge to the legal sufficiency of the evidence, weexamine the evidence to determine whether any rational trier of factcould have found the essential elements of the offense beyond areasonable doubt. Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex.Crim. App. 2005). We review all the evidence in the light mostfavorable to the verdict, and assume the trier of fact resolved conflicts


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in the testimony, weighed the evidence, and drew reasonableinferences in a manner that supports the verdict. SeeRollerson v.State, 227 S.W.3d 718, 724 (Tex. Crim. App. 2007).

Here, the testimony of both Gonzalez and Benitez, combined withGarcia's previous statements to police, established that appellant wasone of the men shooting at the complainant. The credibility of thesewitnesses was for the jury to decide. Accordingly, viewing theevidence in the light most favorable to the verdict, the evidence islegally sufficient to demonstrate at a minimum appellant's guilt as a

party to the murder. SeeTex. Penal Code Ann. 7.02(a)2) (West2003). We overrule appellant's first point of error.

In his second point of error, appellant complains the trial court erred inoverruling his objection to the evidence taken from the MySpacepages. He argues that there was no proof the MySpace pages inquestion were created and maintained by him. In effect, he argues theMySpace pages were not authenticated. The requirement ofauthentication is a condition precedent to the admissibility of evidenceand is satisfied by evidence sufficient to support a finding that thematter in question is what its proponent claims. Tex. R. Evid. 901(a).

A trial court should admit evidence that is relevant based upon aconditional fact of authentication only if there is sufficient evidence tosupport a jury finding that the conditional fact is true. SeeDruery v.State, 225 S.W.3d 491, 502 (Tex. Crim. App. 2007). The appearance,contents, substance, or other distinctive characteristics of the

evidence, taken in consideration of the circumstances of the case,may be used to authenticate the evidence. SeeTex. R. Evid. 901(b)(4). The trial court does not abuse its discretion in admitting evidencewhere it "reasonably believes that a reasonable juror could find thatthe evidence has been authenticated." See Druery, 255 S.W.3d at502. We may not reverse the trial court's decision when that decisionis within the zone of reasonable disagreement. SeePowell v. State,63 S.W.3d 435, 438 (Tex. Crim. App. 2001).

The MySpace evidence complained of by appellant showed that theholder of the MySpace accounts identified himself as Smiley or RonTienda, Jr. in Dallas or D-town. There were photographs of appellanton the MySpace pages and references to the murder of thecomplainant, as well as appellant's being arrested and placed onelectronic monitoring. The record shows that appellant was placed onthe Electronic Monitoring Program as a condition of his bond onOctober 24, 2007. Comments on the pages referenced a Hectorsnitching on him and the fact that more than one person was involvedin the shooting for which appellant was arrested.

The inherent nature of social networking websites encouragesmembers who choose to use pseudonyms to identify themselves byposting profile pictures or descriptions of their physical appearances,personal backgrounds, and lifestyles. This type of individualization issignificant in authenticating a particular profile page as having beencreated by the person depicted in it. The more particular andindividualized the information, the greater the support for areasonable juror's finding that the person depicted supplied theinformation. See Griffin v. Maryland, 995 A.2d 791, 806, cert. granted,415 Md. 607 (September 17, 2010). Having reviewed the details ofthe MySpace pages admitted into evidence in this case, we concludethat the trial court did not abuse its discretion in admitting theevidence. We overrule appellant's second point of error. We affirm thetrial court's judgment.

[1] Many of the witnesses testified they knew appellant by this nickname.


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Tienda v State of Texas

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