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TIENDA v. State, Tex: Court of Appeals, 5th Dist. 2010 - Google Scholar -...

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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DO NOT PUBLISH.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 on appeal, appellant complains the evidence against him is factually insufficient and the trial court erred in admitting certain evidence. Concluding appellant's arguments are without merit, we affirm the trial court's judgment.

Factual Background
The night of the complainant's murder, both he and appellant were at a nightclub with separate groups of friends. The complainant and a man called "Nu-Nu" exchanged words and gestures as the first nightclub closed and both groups left to drive to a second club. The complainant was driving a red Dodge Magnum with his cousin's husband Mario Benitez in the passenger seat and his friend Hector Gonzalez in the back seat. Shots fired at the car from at least one other vehicle hit the complainant, causing him to lose control of the Magnum. At the hospital where the complainant was declared dead, Gonzalez told his girlfriend that appellant and Nu-Nu had shot at their car. According to Gonzalez's testimony at trial, before the shooting a GMC Yukon pulled up near the Magnum as they were driving down the highway. Nu-Nu started "hanging out the window, talking noise and stuff." The Yukon was traveling with a black Lincoln car and a white Lincoln truck. The complainant sped up and moved away from the Yukon. After a while, Gonzalez testified, they heard gunshots behind them, and the back windshield of the Magnum shattered. Gonzalez ducked. Then he saw the white Lincoln truck pass them as the passengers inside fired shots. The white truck moved on, and then they saw the passengers in the black Lincoln shooting at them. Gonzalez stated that when he saw appellant hanging out the front passenger window of the black Lincoln holding a pistol with a long clip, he began to shoot at the Lincoln. After the complainant was shot and the Magnum crashed into a barricade, Gonzalez and Benitez got out of the Magnum and called an ambulance. Gonzalez had thrown his gun out the window. In his statement to police the night of the shooting, Gonzalez said that he saw Nu-Nu hanging out of the window of the black Lincoln and a man called "Juvie" doing the shooting, rather than appellant. Gonzalez said nothing to police about appellant's involvement in the offense on the night of the shooting. He acknowledged that his memory of the incident was fresher two hours after it happened than at the time of trial. He stated, however, that there was no doubt in his mind that appellant was shooting on the night of the murder. He picked appellant out of a photographic lineup the night of the

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TIENDA v. State, Tex: Court of Appeals, 5th Dist. 2010 - Google Scholar -...
shooting, telling police only that he had seen him before "at the club." Gonzalez testified that he had heard that appellant and Nu-Nu were members of the gang Tango Blast. He saw them "throwing" gang signs at him and the complainant at the club. The gang sign resembled a star made with the gang member's hands. Mario Benitez testified that he was in the car with appellant and Gonzalez when appellant's group "just pulled up and started shooting." Benitez stated, "At the end when I started looking up a little from the gunshots, I [saw appellant's] face coming out [of] the window." When he was first shown a photographic lineup, Benitez was unable to identify appellant. Benitez stated this was because the picture they had shown him was a "juvenile picture" and appellant had matured since that time. The night of the offense, Benitez did not tell police he had seen appellant shooting into the Magnum. In his statement, he wrote that the shot that hit the complainant came from a white truck. Benitez claimed this was because he was "going crazy" that night, and he further claimed that he tried to tell the detective what had happened the next day when he was more clearheaded. Benitez claimed he never saw Gonzalez fire a weapon from the Magnum or throw a gun from it. He explained that this was because there were so many shots fired into the car. Benitez did not know whether it was a shot from the first vehicle or the second that actually struck the complainant. He testified that he knew appellant shot at the complainant, but he never saw Nu-Nu with a gun that night. Benitez stated that he, too, had seen members of appellant's group throwing gang signs toward his group at the club. Gerrado Garcia testified that he was with appellant's group at the first club on the night of the shooting. Garcia left the club in a white Lincoln truck with Louis Quinones and a guy named "Crusty" or "Musty" in the back seat. Garcia was driving. As they got on the highway to head to the second club, Garcia claimed, Musty shot a gun up in the air two times. Later on, Garcia saw the complainant's red car pass them, followed by approximately four vehicles. Then, as Garcia's truck passed the complainant's car, he saw a group of vehicles around the car. He claimed he saw a gray Mustang, a white car, and a black Lincoln LS. The occupants of the vehicles were shooting at the complainant's car and someone in the complainant's car was shooting back. Garcia recalled telling police that he saw appellant hanging out of the back passenger window of a car holding what appeared to be an assault rifle and shooting at the Magnum. He testified at trial, however, "I can't say it was him shooting. I remember it was a black car shooting at the red car, but I can't . . . accuse somebody of shooting somebody. I know that both cars were shooting at each other." On the night of the shooting, Garcia gave explicit details of appellant's gang involvement and the tattoo on the back of appellant's head. When asked at trial if he was trying to "water down" what he saw 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." Garcia claimed he did not know how the back windshield of the Magnum was shattered. Louis Quinones confirmed that he left the club in a white Lincoln truck with 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 the white truck and Musty was sitting in the front passenger seat. He stated that there were two or three shots fired from the truck as it got on the highway, but he claimed he did not know who fired the shots because the music was too loud in the backseat. The night of the murder, Quinones told police he saw a Tahoe, a Mustang, and a Lincoln approach the complainant's car on the highway. Then he saw flashes coming from the vehicles and heard gunshots but he could not tell which vehicle they were coming from. At trial, however, Quinones testified that he had not seen the vehicles approach the complainant's Magnum. He claimed he merely saw the vehicles pass his truck and heard the gunshots. He also admitted seeing the Magnum crash into the highway wall after he heard the shots. City of Dallas police officer Cindy Arispe testified that when she

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TIENDA v. State, Tex: Court of Appeals, 5th Dist. 2010 - Google Scholar -...
arrived at the scene of the shooting, she was able to speak with Gonzalez and Benitez. They told her that two vehicles had approached the Magnum. First, they said they saw a man leaning out the window of a white Lincoln pickup truck and flashing gang signs at them, while the complainant tried to drive away. Next, the truck sped up near them again and the same man started firing inside their car. Afterward, someone started firing out of a black mid-size to full-size sedan, but they could not see because they were ducking to avoid being shot. They described the suspect in the white truck as firing what 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 men were very anxious and concerned about the complainant, who was being treated by paramedics at the scene. The complainant's sister, Priscilla Palomo, testified that she found appellant's MySpace accounts based on "a lead." She found MySpace pages containing photos of appellant and comments allegedly made by him when she searched for him under "Smiley," his nickname.[1] The State produced no other witnesses to identify the MySpace pages. The district attorney's office subpoenaed records associated with ID user numbers from his MySpace accounts. The trial court admitted these records into evidence over appellant's objection. Several profiles were found for appellant on MySpace. His name was listed as "ron mr. t", "ron Mr.T" and "SMILEY FACE." His city was listed as "D TOWN," "D*Town," and "dallas." And his various email addresses incorporated the name Smiley or Ronnie Tienda, Jr. On one MySpace page, there was a photograph of appellant with the caption, "If you ain't blasting, you ain't lasting," and the notation, "Rest in peace, David Valadez [the complainant]." There was a bar near the notation that allowed MySpace users to play a song, which Palomo testified was the song that the complainant's family had used at his memorial service. Another MySpace page contained the statement, "Yeah, . . . I keep it gangster, even after Hector shot at Nu-Nu at [the second club], we still didn't tell. And I know Jesse told him we was there, `cause we saw them at the club, but it's cool if I get off, man." Another comment read, "Yeah, . . . everyone was busting and they only told on me." Still other comments mentioned appellant's electronic monitor and "Hector snitching on me." The photographs of appellant on the MySpace pages also included one where he was displaying his electronic monitor and another captioned "str8 outta jail and n da club." Palomo admitted there was no way to verify who is the 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 MySpace demonstrated his membership in the Dallas branch of the Tango Blast gang. He stated that members of the gang often stay in contact through MySpace. He noted that the number 18 tattooed on the back of appellant's head was a reference to the North Side 18th Street Gang. Torres explained that the phrase, "If you ain't blasting, you ain't lasting" is a phrase they use against other gangs to let them know that 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 against him is factually insufficient. The Texas Court of Criminal Appeals recently 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 of Jackson v. Virginia, 443 U.S. 307 (1979), is now "the only standard that a reviewing court should apply in determining whether evidence is sufficient to support each element of a criminal offense." Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010). We will therefore not address appellant's factual sufficiency challenge but will address the legal sufficiency of the evidence in the interest of justice. In reviewing a challenge to the legal sufficiency of the evidence, we examine the evidence to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex. Crim. App. 2005). We review all the evidence in the light most favorable to the verdict, and assume the trier of fact resolved conflicts

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TIENDA v. State, Tex: Court of Appeals, 5th Dist. 2010 - Google Scholar -...
in the testimony, weighed the evidence, and drew reasonable inferences in a manner that supports the verdict. See Rollerson v. State, 227 S.W.3d 718, 724 (Tex. Crim. App. 2007). Here, the testimony of both Gonzalez and Benitez, combined with Garcia's previous statements to police, established that appellant was one of the men shooting at the complainant. The credibility of these witnesses was for the jury to decide. Accordingly, viewing the evidence in the light most favorable to the verdict, the evidence is legally sufficient to demonstrate at a minimum appellant's guilt as a party to the murder. See Tex. Penal Code Ann. 7.02(a)2) (West 2003). We overrule appellant's first point of error. In his second point of error, appellant complains the trial court erred in overruling his objection to the evidence taken from the MySpace pages. He argues that there was no proof the MySpace pages in question were created and maintained by him. In effect, he argues the MySpace pages were not authenticated. The requirement of authentication is a condition precedent to the admissibility of evidence and is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. Tex. R. Evid. 901(a). A trial court should admit evidence that is relevant based upon a conditional fact of authentication only if there is sufficient evidence to support a jury finding that the conditional fact is true. See Druery 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. See Tex. R. Evid. 901(b) (4). The trial court does not abuse its discretion in admitting evidence where it "reasonably believes that a reasonable juror could find that the evidence has been authenticated." See Druery, 255 S.W.3d at 502. We may not reverse the trial court's decision when that decision is within the zone of reasonable disagreement. See Powell v. State, 63 S.W.3d 435, 438 (Tex. Crim. App. 2001). The MySpace evidence complained of by appellant showed that the holder of the MySpace accounts identified himself as Smiley or Ron Tienda, Jr. in Dallas or D-town. There were photographs of appellant on the MySpace pages and references to the murder of the complainant, as well as appellant's being arrested and placed on electronic monitoring. The record shows that appellant was placed on the Electronic Monitoring Program as a condition of his bond on October 24, 2007. Comments on the pages referenced a Hector snitching on him and the fact that more than one person was involved in the shooting for which appellant was arrested. The inherent nature of social networking websites encourages members who choose to use pseudonyms to identify themselves by posting profile pictures or descriptions of their physical appearances, personal backgrounds, and lifestyles. This type of individualization is significant in authenticating a particular profile page as having been created by the person depicted in it. The more particular and individualized the information, the greater the support for a reasonable juror's finding that the person depicted supplied the information. See Griffin v. Maryland, 995 A.2d 791, 806, cert. granted, 415 Md. 607 (September 17, 2010). Having reviewed the details of the MySpace pages admitted into evidence in this case, we conclude that the trial court did not abuse its discretion in admitting the evidence. We overrule appellant's second point of error. We affirm the trial court's judgment.
[1] Many of the witnesses testified they knew appellant by this nickname.

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