Tan Kien Tu v. State

61 S.W.3d 38, 2001 Tex. App. LEXIS 5393, 2001 WL 893631
CourtCourt of Appeals of Texas
DecidedAugust 9, 2001
DocketNo. 14-97-00436-CR
StatusPublished
Cited by12 cases

This text of 61 S.W.3d 38 (Tan Kien Tu v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Tan Kien Tu v. State, 61 S.W.3d 38, 2001 Tex. App. LEXIS 5393, 2001 WL 893631 (Tex. Ct. App. 2001).

Opinion

OPINION

AMIDEI, Justice (Assigned).

A Harris County jury found appellant, Tan Kien Tu, guilty of engaging in organized criminal activity and assessed his punishment at 99 years’ imprisonment and a $10,000 fine. See Tex.Pen.Code Ann. § 71.02 (Vernon 1994 & Supp.2000). The indictment alleged that Tu, with the intent to establish, maintain, and participate in a criminal combination or the profits of a criminal combination, committed the offense of theft of more than $200,000 from five specified insurance companies, over a period of approximately fifteen months, pursuant to a single scheme or continuing course of conduct. After the trial court denied a pretrial motion for severance, Tu’s case was consolidated with co-defendants Thomas Henry Gemoets, Randy Jar-nigan, Alfonso Gonzalez, and Leighann Phan.1 In seven points of error, Tu argues that: (1) the conviction should be reversed because parts of the appellate record are missing; (2) the evidence is legally insufficient to support the verdict; (3) the trial court erred in denying his motion to quash the indictment; (4) the trial court erred in denying a severance; (5) the trial court erred in limiting cross-examination of Oscar Phu; (6) the trial court erred in prohibiting impeachment of Mong “Angie” Nguyen, an out-of-court declarant; and (7) Tu adopts points of error presented by other appealing defendants. We affirm.

I.

In his first point of error, Tu argues that the appellate record is incom-[43]*43píete, contending the large chart, the money trails book, and the audio tapes made by the undercover officer are missing. After submission of his brief, each of these items was forwarded for inclusion in the record. Accordingly, we overrule his first point of error.

II.

In his second point of error, Tu argues the evidence is legally insufficient to support the jury’s verdict. We disagree.

In reviewing legal sufficiency, we view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Margraves v. State, 34 S.W.3d 912, 916 (Tex.Crim.App.2000). Thus, a “legal sufficiency of the evidence review does not involve any weighing of favorable and non-favorable evidence.” Cardenas v. State, 30 S.W.3d 384, 389 (Tex.Crim.App.2000). Our legal sufficiency standard of review is the same for both direct and circumstantial evidence cases. See Weyandt v. State, 35 S.W.3d 144, 149 (Tex.App.—Houston [14th Dist.] 2000, no pet.).

Additionally, for the purpose of applying the Jackson legal sufficiency standard, the “essential elements” of the offense are those required by the “hypothetically correct jury charge.” Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App.1997). The hypothetically correct jury charge is that which “accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s theories of liability, and adequately describes the particular offense for which the defendant was tried.” Id.

A defendant commits the offense of engaging in organized criminal activity if, intending to establish, maintain, or participate in a combination or in the profits of a combination, he commits or conspires to commit theft. Tex.Pen.Code Ann. § 71.02(a)(1) (Vernon 1994 & Supp.2000). A “combination” is defined as three or more persons who collaborate in carrying on criminal activities, although: (1) the participants may not know each other’s identities; (2) membership may change from time to time; and (3) participants may stand in a wholesaler-retailer or other arm’s-length relationship in illicit distribution operations. Tex.Pen.Code Ann. § 71.01(a) (Vernon 1994 & Supp.2000); see Nguyen v. State, 1 S.W.3d 694, 695 (Tex.Crim.App.1999). “[T]o commit the offense of engaging in organized criminal activity, the actor must not only agree to participate but must himself perform some overt act in pursuance of that agreement. Guilt requires two ingredients: (1) intent to participate in a criminal combination, and (2) the defendant’s performing some act, not necessarily criminal in itself, in furtherance of the agreement.” Barber v. State, 764 S.W.2d 232, 235 (Tex.Crim.App.1988).

Because direct evidence is rarely available to prove the existence of an agreement, circumstantial evidence is sufficient and is almost always needed. See Burdine v. State, 719 S.W.2d 309, 315 (Tex.Crim.App.1986). The fact finder may make its determination of the existence of an agreement based on events occurring before, during and after the commission of the offense and may rely on the actions of the defendant showing an understanding and a common design to do a criminal act. See Beier v. State, 687 S.W.2d 2, 4 (Tex.Crim.App.1985). It is permissible to infer an agreement among a group working on a common project when each person’s action is consistent with realizing the common [44]*44goal. See McGee v. State, 909 S.W.2d 516, 518 (Tex.App.—Tyler 1995, pet. ref d).

At trial, the following witnesses detailed how auto accidents were staged and how Tu orchestrated the forwarding of insurance claims to attorneys and physicians:

Harris County Deputy Sheriff Charles Patberg

In March 1994, Patberg received information about possible insurance fraud from the Galveston County Auto Crimes Task Force. He began investigating, and, while undercover, ultimately met with several people who staged car accidents for insurance money. This group included Kenneth Johnson, Michael Ford, Angie Mong, and Mary Pressley, who, unbeknownst to the others, was a police informant. At this meeting, Patberg was given $130 to purchase car insurance on an undercover car. He also learned that Angie Mong, who was present at the meeting, was a leader of the group.

After purchasing the insurance policy, Patberg contacted Angie Mong, who initiated the plans for his accident. She explained that because his Safeway Insurance, which she called “bad” insurance, did not pay claims easily, his car would be the “girl” car in the accident. The “girl” car was the car that got hit in the accident, as opposed to the “boy” car, which hit the girl car and accepted fault for the accident. Mong instructed Patberg to have a minimum of four occupants in the girl car. In the boy car, there was normally just a driver.

Mong explained to Patberg that these accidents were staged in the following manner: a group member took the boy and girl cars to a secluded location and hit them together. He would then pick up the debris from the vehicles, take both vehicles to another intersection, position the cars, throw the debris in the middle of the road, and call the police. When the police arrived, the driver of the boy car would say something like, “I’m sorry, I ran the red light,” or “I’m sorry, I didn’t see the red light.

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Bluebook (online)
61 S.W.3d 38, 2001 Tex. App. LEXIS 5393, 2001 WL 893631, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tan-kien-tu-v-state-texapp-2001.