Xiomara Rosales Mendez v. State
2012 Tex. App. LEXIS 6807
| Tex. App. | 2012Background
- Appellants Nava and Mendez were convicted of felony murder and organized criminal activity in Houston; evidence centered on a June 2009 undercover/“reverse sting” operation involving stolen televisions at Fiesta parking lot.
- Conspirators included Nava (owner of van), Mendez (flea-market seller), Carrillo (driving Budget truck), and a minor; they negotiated a sale of 34 stolen televisions valued at over $30,000.
- Police paid $6,500 cash to Officer Canales as part of the staged sale; Carrillo then retrieved a towel-wrapped object from Nava’s van and shot Canales, who died later from wounds.
- The State’s case rested on conspirator-responsibility theories under 7.02(a)(2) (accomplice liability) and 7.02(b) (conspiracy liability) for felony murder and theft.
- The jury convicted both appellants; punishments included 60 years for felony murder and 7–20 years for organized crime, with issues raised on sufficiency of evidence, missing record, and jury charge.
- The record includes extensive discussion of statutory theories, evidentiary sufficiency, and remedial instructions, culminating in affirmed judgments.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for felony murder | Nava and Mendez contend insufficient to prove felony murder. | Nava and Mendez argue no evidence they anticipated deadly force. | Sufficiency supported; jury could find anticipation of deadly act during theft. |
| Sufficiency of evidence for organized crime | State argues conduct showed a continuing criminal enterprise. | Nava challenges proof of a continuing collaboration. | Sufficient to establish a combination and participation in ongoing criminal activities. |
| Missing record under Rule 34.6(f) | Missing voir dire record necessary to resolve issues. | Record irretrievable; not necessary to resolution. | Appellants not entitled to new trial; missing portion not needed for appeal. |
| Felony-murder jury-charge error (7.02(a)(2)) | Accomplice liability may apply to felony murder. | Instruction improperly framed; could convict on theft alone. | Charge error; but no egregious harm; issues overruled. |
| Definition of "collaborate in carrying on"; sudden-passion instruction | Nguyen definition should have been given; sudden passion instruction warranted. | Trial court properly refused Nguyen; no sudden passion entitlement. | Nguyen definition rejected; no sudden-passion instruction error. |
Key Cases Cited
- Jackson v. Virginia, 443 U.S. 307 (U.S. 1979) (standard for reviewing sufficiency of evidence)
- Gear v. State, 340 S.W.3d 743 (Tex. Crim. App. 2011) (review standard for sufficiency applies to circumstantial and direct evidence)
- Hooper v. State, 214 S.W.3d 9 (Tex. Crim. App. 2007) (circumstantial evidence sufficient to convict)
- Malik v. State, 953 S.W.2d 234 (Tex. Crim. App. 1997) (hypothetical charge sufficiency frameworks)
- Ex parte Thompson, 179 S.W.3d 549 (Tex. Crim. App. 2005) (accomplice liability in capital murder context; lesser-included felony murder)