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Click here for the full text of this decision FACTS:According to testimony from Eric Saenz, Eric’s brother John, who was known as one of the leaders of a gang called the Pistoleros, or the HPL, called Eric one morning to come to his house with a weapon because he was expecting trouble from a rival who was said to be coming over to the house. Eric said he couldn’t, so John told him he would recruit some others. John called later to say he had recruited the defendant and another gang member, Alvarado, and that they both had guns. John called later that afternoon to say that they had “taken care of what was going to happen” and that he needed help disposing of three bodies (the rival, his girlfriend and a third person). Eric again declined. The defendant, John and Thomas Ayala arrived at Eric’s house later that night and told him what happened, including that John had shot the rival’s girlfriend, and that they had disposed of the bodies. Defendant stood by and did not say anything except that Eric “should have been there” because he “would have had some fun.” At the defendant’s trial for capital murder � for the killing of more than one person in the same criminal transaction � the defendant objected to this last portion of Eric’s testimony as hearsay, but the trial court overruled it. Thomas Ayala also testified. He described how John told him how he and the two others, including the defendant, killed the three victims. The defendant was present during this recounting, but did not say anything. Thomas also confirmed the scene at Eric’s house at night when John retold the story and the defendant did not contradict him. The defendant’s objection to Thomas’ testimony as hearsay was also overruled. The defendant requested jury instructions that Thomas, John’s wife Priscilla, and Julio Gonzalez were accomplices as a matter of law. Thomas testified that John called him to come over, and then told him to help him dispose of the three bodies that were wrapped in rugs in the garage. Thomas and the defendant went to get gas together before Thomas left with several others to drive the bodies two hours away and then burn the bodies. Priscilla testified that John told her to leave the morning the murders occurred. When she returned, she saw that the house was torn apart and she saw the bodies wrapped in the carpets. She bought gas and cigarettes for the group before they left with the bodies. Julio testified that he was summoned to John’s house to work on “construction,” but when he got there, he was told to put the carpets with the bodies into the truck. He was among those who drove the bodies out of town and then washed the vehicles they used when they got back. Photos were introduced into evidence, too. They showed the victims’ wounds on their charred bodies, and also saw photos of their burned faces that were used to identify them during their autopsies. The defendant objected to their admission, but the trial court overruled it. The defendant was convicted of capital murder and now appeals. HOLDING:Affirmed. The defendant says the trial court should have granted his hearsay objection to Eric’s recitation of John’s story about when John and the defendant came over later on the night of the murder. The court rules that under Texas Rule of Evidence 801(e)(2)(B), the testimony was an adoptive admission: “a statement of which the party has manifested an adoption or belief in its truth.” The defendant stood by while the story implicating him was told, and he did not dispute any of it. Though the defendant argued he was too intimidated to contradict John, the court points out that John couldn’t have been too intimidating a figure to the parties since Eric twice refused his help. The court also points out that not only did the defendant acquiesce in the description of the events, he also told Eric that he “should have been there” and that he “would have had some fun.” The court rules the same reasoning applies to the testimony offered by Thomas. It was an adoptive admission because the defendant silently stood by while criminal activity was attributed to him. Again, the court rejects the notion that the defendant was silent out of fear of John’s status. The court finds that none of the three � Thomas, Priscilla or Julio � were accomplices, so a jury instruction on accomplice liability was not necessary. An accomplice participates with a defendant before, during, or after the commission of a crime and acts with the required culpable mental state, the court confirms. In all three circumstances, the murders had already been committed by the time of their involvement. Although they all assisted after the fact, none would have been susceptible to a prosecution for capital murder. The defendant also wanted an accomplice jury instruction for John, but the court reminds him that such an instruction is available only for witnesses and John did not testify. The court declines the defendant’s offer to revisit that basic rule. The court affirms that admission of the photos. They were not unduly prejudicial just because they showed burned bodies, even though the victims did not die from the burns. The photos are probative of the efforts taken to cover up the crime, which bears on the issue of guilt, the court says. OPINION:Meyers, J.; Keller, P.J., Price, Johnson, Keasler, Hervey, Holcomb, and Cochran, JJ., join. Womack, J., concurred.

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