ACCEPTED 01-14-00722-CR FIRST COURT OF APPEALS HOUSTON, TEXAS 3/30/2015 12:00:00 AM CHRISTOPHER PRINE CLERK
NO. 01-14-00722-CR
IN THE COURT OF APPEALS FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS FOR FIRST SUPREME JUDICIAL DISTRICT 3/30/2015 11:19:00 AM CHRISTOPHER A. PRINE Clerk HOUSTON, TEXAS .................................................................................................................................... THANH KIM HOANG * APPELLANT
VS. *
THE STATE OF TEXAS * APPELLEE .................................................................................................................................... TRIAL COURT NO. 1384675
IN THE 209TH JUDICIAL DISTRICT COURT
OF HARRIS COUNTY, TEXAS .................................................................................................................................... BRIEF FOR APPELLANT .................................................................................................................................... Charles Hinton P.O. Box 53719 Houston, Texas 77052-3719 chashinton@sbcglobal.net SBOT #09709800 Attorney for Appellant TABLE OF CONTENTS
Page:
Identity of Parties and Counsel i
List of Authorities ii, iii
Statement of the Case 1
Point for Review Number One 1
APPELLANT SUFFERED EGREGIOUS HARM AS A RESULT OF THE TRIAL COURT'S UNOBJECTED TO BUT ERRONEOUS JURY CHARGE INSTRUCTION THAT MISINFORMED THE JURY AS TO WHICH SPECIFIC OFFENSE THE STATE HAD TO PROVE APPELLANT ACTED WITH THE INTENT TO PROMOTE OR ASSIST THE COMMISSION OF BEFORE HE COULD BE FOUND CRIMIN- ALLY RESPONSIBLE AS A PARTY TO THE CHARGED OFFENSE OF CAPITAL MURDER PURSUANT TO TEX. PENAL CODE SEC. 7.02(a)(2) (CR: I: 101).
Statement of the Facts 1
Summary of the Argument 6
Argument 8
Prayer for Relief 22
Certificate of Compliance 23
Certificate of Service 23 IDENTITY OF PARTIES AND COUNSEL
Judge Honorable Wayne Mallia
Complainant Mr. Tuan Tu
Trial Prosecutors Mr. Nathan Moss SBOT #24051091
Mr. David Bernard SBOT #24076272
Defense Counsel Mr. Kurt B. Wentz SBOT #21179300
Appellant Mr. Thanh Kim Hoang
Appellant's Counsel Mr. Charles Hinton SBOT #09709800
Appellee's Counsel: Mss. Devon Anderson District Attorney
i LIST OF AUTHORITIES
Cases: Page:
Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1985, op. on reh'g) 16
Delgado v. State, 235 S.W.3d 244 (Tex. Crim. App. 2007) 14
Gray v. State, 152 S.W.3d 125 (Tex. Crim. App. 2004) 16
Green v. State, 233 S.W.3d 72 (Tex. App. -- Houston [14th Dist.] 2007) 21
Guevara v. State, 191 S.W.3d 203 (Tex. App. -- San Antonio 2005, PDRR) 15
Plata v. State, 926 S.W.2d 300 (Tex. Crim. App. 1996) 14
Ransom v. State, 920 S.W.2d 288 (Tex. Crim. App. 1994) 13
Robinson v. State, 266 S.W.3d 8 (Tex. App. -- Houston [1st Dist.] 2008, PDRR) 22
Stephens v. State, 717 S.W.2d 338 (Tex. Crim. App. 1986) 13
Vega v. State, 394 S.W.3d 514 (Tex. Crim. App. 2013) 14
ii LIST OF AUTHORITIES (cont'd)
Wooden v. State, 101 S.W.3d 542 (Tex. App. -- Fort Worth 2003, PDRR) 13
Statutes:
Tex. Penal Code sec. 7.01(a) 6, 9, 22
Tex. Penal Code sec. 7.02(a)(2) 1, 7-19, 21, 22
Tex. Penal Code sec. 7.02(b) 7, 9, 22
Tex. Penal Code sec. 19.02 8
Tex. Penal Code sec. 19.03(a)(2) 8, 10
iii TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS
FOR THE FIRST SUPREME JUDICIAL DISTRICT:
Comes now, appellant Thanh Kim Hoang, and submits this brief pursuant to
TEX. R. APP. PROC. 38.1.
STATEMENT OF THE CASE
On August 21, 2014, a jury found appellant guilty of capital murder and the
trial court assessed punishment at life in prison. Appellant gave timely notice of
appeal (RR 5: 37, 40).
POINT FOR REVIEW NUMBER ONE
APPELLANT SUFFERED EGREGIOUS HARM AS A RESULT OF THE TRIAL COURT'S UNOBJECTED TO BUT ERRONEOUS JURY CHARGE INSTRUCTION THAT MISINFORMED THE JURY AS TO WHICH SPECIFIC OFFENSE THE STATE HAD TO PROVE APPELLANT ACTED WITH THE INTENT TO PROMOTE OR ASSIST THE COMMISSION OF BEFORE HE COULD BE FOUND CRIMINALLY RESPONSIBLE AS A PARTY TO THE CHARGED OFFENSE OF CAPITAL MURDER PUR- SUANT TO TEX. PENAL CODE SEC. 7.02(a)(2) (CR 1: 101).
STATEMENT OF THE FACTS
Harris County Sheriff Officer Brandon Kizzee, while working patrol on
February 8, 2013, responded to a call at 8244 Antoine Drive, the Cafe Chieu (RR 3:
22-24, 26). Upon entering, he observed a male face down in a puddle of blood
1 next to a pool table (RR 3: 27). He observed the barrel of a handgun underneath
the male's body (RR 3: 28). He noticed bullet holes in the wall and several shell
casings on the floor (RR 3: 29).
Crime Scene Investigator Officer Gary Pedoto made the homicide scene. He
observed Officer Ortiz collect glasses and cigarette butts from the cafe (RR 3: 37-
39). A pair of sunglasses were found which contained Mr. Vu Bui's fingerprint (RR
3: 41, 105).
Sergeant investigator James Dousay of the Homicide Division took buccal
swabs from appellant and turned them into the Harris County Medical Examiner's
Office (RR 3: 49-50, 54).
Sergeant Francisco Garcia of the Homicide Division (RR 3: 57) saw
numerous fired cartridges at the scene. He also saw the deceased complainant's
revolver (RR 3: 66). There were 5 fired cartridges in the revolver (RR 3: 67). He
found video surveillance and located witnesses. A cell phone left by the shooter
suspect Mr. Vu Bui was found and swabbed for DNA (RR 3: 69-70, 100).
Witnesses Johnny Le and Nghiep Le picked Mr. Vu Bui out of a photo array
and indicated that he was the person who shot the complaining witness (RR 3: 77-
78, 104). However, Mr. Bui was never found (RR 3: 78). A photo array containing
2 appellant's photo was created. Mr. Nghiep made a "strong tentative"
identification of the appellant (RR 3: 83). Mr. Johnny Le was unable to identify
anyone in the photo array. A buccal swab was obtained from appellant and
charges were filed against him (RR 3: 85).
The ballistics evidence collected from the game room was turned over to
the lab (RR 3: 99).
There was a plaza mall on Antoine nearby to where Lawrence Ontiveros
lived at 8603 Enchanted Forest (RR 3: 112). He saw 2 Asian men, running away
from the mall, jump into what looked like a brown Toyota Camry (RR 3: 114, 117-
118). About 10 minutes later, he heard police sirens and, subsequently, a lot of
police officers arrived in the area (RR 3: 118). He didn't see any blood droplets in
the street or on the sidewalk where the men had been running (RR 3: 120).
On February 8, 2013, Mr. Johnny Le was in the store playing pool. His
brother and the store owner were there also (RR 3: 123). Prior to testifying, he
had been given the opportunity to view the surveillance video from the store (RR
3: 123). In the video he saw himself, his brother and the store owner. He and his
brother played pool for about 35 minutes.
Two men entered the store, the first one wearing a jacket and glasses; the
3 second one was wearing a hat and glasses (RR 3: 125). They spoke to the owner
(RR 3: 126). They were there 15 minutes (RR 3: 127). Then they stood up as if to
leave walking towards the exit (RR 3: 129). The shooter took out a gun, tapped
Johnny Lee on the shoulder, and ordered him to kneel down (RR 3: 130). Then he
told everybody to lay down. The second man, the non-shooter, came up behind
Johnny Le (RR 3: 131). The second man never pointed a gun at Johnny Le. The
second man also told Johnny Le to lay down (RR 3: 132). While kneeling down,
Johnny Le heard the shooting (RR 3: 133). The gunman and the owner started to
shoot each other (RR 3: 135). The cafe owner, Mr. Tu, pulled his gun in response
to the other man having his gun out (RR 3: 136). Mr. Tu collapsed as he was
running towards the entrance and he did not get back up. Blood was coming from
his abdomen. Johnny Le's brother called 911. Johnny Le gave a statement to the
police (RR 3: 137-138). Mr. Johnny Lee never saw the non-shooter short man
direct the tall man to do anything. Mr. Johnny Lee saw the short man run out of
the cafe first and then the tall man ran out about 20 seconds later (RR 3: 146-
147).
Mr. Nghiep Le and his brother went to shoot pool at a coffee shop on
4 February 8, 2013 (RR 4: 13). Mr. Nghiep Le, his brother Johnny Le, and the owner
were the only ones present when 2 men entered (RR 4: 15-16). Guns were
drawn, shots fired, and the owner died (RR 4: 14). No one else entered the cafe
between the time the two men entered and the shooting occurred (RR 4: 16). The
defendant's friend, not the defendant, took out a gun and told everybody to kneel
down (RR 4: 17). After the man with the gun ran out, Mr. Nghiep Le called 911.
The owner, Mr. Tu, was lying on the floor (RR 4: 21). Mr. Nghiep Le gave a
statement to the police (RR 4: 22). Mr. Nghiep Le identified the appellant as the
man without the gun (RR 4: 26). The tall man with the gun came back to Mr.
Nghiep Le's brother and told everyone to kneel down (RR 4: 30). During the
shooting, Mr. Nghiep Le was kneeling down. During the shooting, there was no
way he could see what was going on (RR 4: 33).
Assistant Medical Examiner, Dr. Michael Condron performed the autopsy
on the complainant Tuan Tu on February 9, 2013 (RR 4: 37). The cause of death
was 2 gunshot wounds of the torso. The manner of death was homicide (RR 4:
52).
DNA analyst Tammy Taylor did the analysis of item 6 (the glass), item 3 (the
cigarette butt), and item 70 ( K2, the known sample of DNA) (RR 4: 66). State's
5 exhibit #56 is the report she generated (RR 4: 67). She concluded that K2 cannot
be excluded as a possible major contributor to the DNA mixtures on items 3-1 and
6A-1 which were basically sub-items of Items 3 and 6 (RR 4: 68).
Quoc Nguyen was the spouse of the deceased complainant Tuan Tu. They
had been married 15 and 1/2 years. There had 2 children (RR 4: 80).
HCSO Crime Scene Unit Deputy Raymond Campos made a call at the crime
scene at 8244 Antoine on February 8, 2013 (RR 4: 83-84). He was assigned to take
measurements of evidence including bullets striking walls (RR 4: 85-86). Neither
the projectiles that struck the south wall nor the projectiles that struck the north
wall were a tightly grouped set of shots (RR 4: 94). There were eight 9-millimeter
casings found at the scene. The revolver found at the scene was a .38 caliber (RR
4: 95). Casings do not eject from a revolver; casings eject from a semiautomatic
(RR 4: 96).
SUMMARY OF THE ARGUMENT
A person is criminally responsible as a party to an offense if the offense is
committed by his own conduct, by the conduct of another for which he is
criminally responsible, or by both. TEX. PENAL CODE, sec. 7.01(a).
6 The evidence clearly showed, as the state's prosecutor Mr. Moss conceded,
(RR 5:5) that appellant was not the shooter and that Mr. Vu Bui shot and killed
the complainant Mr. Tuan Tu. Therefore, although the trial court's charge did
contain a theory of criminal responsibility as a party to the offense of capital
murder based upon appellant's own conduct, the state relied exclusively on two
alternative theories of criminal responsibility as set out in TEX. PENAL CODE, sec.
7.02(a)(2) and 7.02(b).
Appellant contends that the jury charge contained an application paragraph
which erroneously instructed the jury that, pursuant to sec. 7.02(a)(2), "Before
you would be warranted in finding the defendant guilty of capital murder, ... you
must find from the evidence beyond a reasonable doubt that the defendant,
Thanh Kim Hoang, with the intent to promote or assist in the commission of the
offense of robbery, if any, solicited, encouraged, directed, aided, or attempted to
aid Vu Bui in shooting Tuan Tu, if he did, with the intention of thereby killing Tuan
Tu .... (CR I: 101)."
In order for the jury to find appellant guilty pursuant to sec. 7.02(a)(2), the
jury would have to find from the evidence beyond a reasonable doubt that the
defendant, Thanh Kim Hoang, acted with the intent to promote or assist the
7 commission of the offense of capital murder not robbery. In addition, the jury
would have to find beyond a reasonable doubt that the defendant, Thank Kim
Hoang, solicited, encouraged, directed, aided, or attempted to aid Vu Bui to
commit the offense of capital murder.
The trial court's erroneous jury instruction resulted in egregious harm to
the appellant by allowing the jury to find appellant guilty pursuant to sec.
7.02(a)(2) without the required beyond a reasonable doubt finding that he had
the intent to promote or assist in the commission of the offense of capital
murder.
ARGUMENT
Appellant was charged with capital murder pursuant to TEX. PENAL CODE
sec. 19.03(a)(2) which states that "A person commits an offense if the person
commits murder as defined under Section 19.02(b)(1) and: ... the person
intentionally commits the murder in the course of committing or attempting to
commit ... robbery ...."
In pertinent part the indictment read as follows: "that in Harris County,
Texas, THANH KIM HOANG, hereafter styled the defendant, heretofore on or
about February 8, 2013, did then and there unlawfully, while in the course of
8 committing and attempting to commit the ROBBERY of TUAN TU, intentionally
cause the death of TUAN TU by SHOOTING THE COMPLAINANT WITH A DEADLY
WEAPON, NAMELY A FIREARM (CR I: 11).
A person is criminally responsible as a party to an offense if the offense is
committed by his own conduct, by the conduct of another for which he is
criminally responsible, or by both. TEX. PENAL CODE, sec. 7.01(a).
The surveillance video evidence (State's Exhibit #43 at RR 6: 42) clearly
showed as the prosecutor Mr. Moss candidly pointed out to the jury that
appellant was not the shooter (RR 5: 5). Therefore, appellant could not legally be
found criminally responsible as a party to the offense of capital murder on the
theory that the offense of capital murder was committed by his own conduct. The
state, through Mr. Moss, relied on two alternative theories of criminal
responsibility as set out in TEX. PENAL CODE, sec. 7.02(a)(2) and sec. 7.02(b).
Pursuant to sec. 7.02(a)(2), a person is criminally responsible for an offense
committed by the conduct of another if:
acting with intent to promote or assist the commission of the offense, he
solicits, encourages, directs, aids or attempts to aid the other person to commit
the offense.
9 The "offense" that was committed by Vu Bui was capital murder. Simply
stated, the "offense" of capital murder in this case consisted of the attempted or
actual commission of the underlying offense of robbery plus murder while in the
course thereof. Sec. 19.03(a)(2). Party liability pursuant to the plain language of
sec. 7.02(a)(2) required the appellant Thank Kim Hoang to have acted with the
intent to promote or assist the commission of the offense of capital murder. Party
liability pursuant to the plain language of sec. 7.02(a)(2), in addition, required the
appellant, Thanh Kim Hoang, to have solicited, encouraged, directed, aided or
attempted to aid the other person, namely Vu Bui, to commit the offense of
capital murder.
Therefore, in order for the jury to find appellant Thanh Kim Hoang guilty
and criminally responsible for the offense of capital murder committed by the
conduct of Vu Bui, the jury would have to find beyond a reasonable doubt that
the appellant, Thanh Kim Hoang, acting with the intent to promote or assist the
commission of the offense of capital murder, solicited, encouraged, directed,
aided, or attempted to aid Vu Bui to commit the offense of capital murder. Sec.
7.02(a)(2).
Concerning the application of the TEX. PENAL CODE sec. 7.02(a)(2) type of
10 criminal responsibility for the offense of capital murder committed by the
conduct of another, namely Vu Bui, the trial court instructed the jury, in pertinent
part, as follows:
"Before you would be warranted in finding the defendant guilty of capital
murder ... you must find from the evidence beyond a reasonable doubt that the
defendant, Thanh Kim Hoang, with the intent to promote or assist in the
commission of the offense of robbery (italics added for emphasis), if any, solicited,
encouraged, directed, aided, or attempted to aid Vu Bui in shooting Tuan Tu, if he
did, with the intention of thereby killing Tuan Tu ... (CR I: 101)."
The above italicized phrase "with the intent to promote or assist in the
commission of the offense of robbery" is clearly incorrect. The language "with the
intent to promote or assist in the commission of the offense" obviously comes
directly from sec. 7.02(a)(2). The sec. 7.02(a)(2) phraseology is used in
situations where one person, such as Vu Bui, in the instant case, by his own
conduct commits an offense, such as capital murder, and there is evidence in the
record to support a theory of criminal responsibility whereby a person different
from Vu Bui, such as the appellant, Thanh Kim Hoang, could be found guilty of
capital murder by being held criminally responsible for the conduct of another,
11 namely Vu Bui.
The word "offense" is used twice in sec. 7.02(a)(2). In the first instance, the
statute requires that the person, in order to be found criminally responsible for
the conduct of another, act with intent to promote or assist the commission of
the offense. And that offense has to be the same offense that was committed by
the conduct of another. Therefore, in appellant's case, that offense would have to
be capital murder and not robbery. In the second instance of the use of the word
offense in sec. 7.02(a)(2) it is further required that the person, in order to be
found criminally responsible for the conduct of another, solicit, encourage, direct,
aid, or attempt to aid the other person to commit the offense. Once again, in
appellant's case, that offense would have to be capital murder.
In Wooden v. State, 101 S.W.3d 542 (Tex. App. -- Fort Worth 2003, PDRR),
the appellant was convicted as a party to an aggravated robbery. The Court of
Appeals pointed out that "Section 7.02(a)(2) of the penal code provides that a
person is criminally responsible for another person's conduct if 'acting with intent
to promote or assist the commission of the offense, he solicits, encourages,
directs, aids, or attempts to aid the other person to commit the offense' " Id. at
546.
12 The Fort Worth Court of Appeals further stated that "Rule 7.02(a)(2) of the
penal code requires that a party to an offense intend to promote or assist 'the
offense'. Therefore, the State was required to prove that appellant intended to
promote or assist an aggravated robbery and that he solicited, encouraged,
directed, aided, or attempted to aid in the commission of an aggravated robbery.
Id. at 547."
In Stephens v. State, 717 S.W.2d 338, 340 (Tex. Crim. App. 1986), the Court
of Criminal Appeals declared that "In the instant case, however, the jury had been
charged to convict appellant only if it found that acting with the intent to
promote or assist the commission of the offense, he solicited, encouraged,
directed, aided, or attempted to aid in the another person to commit the offense.
"The offense" in this case was aggravated rape."
In Ransom v. State, 920 S.W.2d 288, 302 (Tex. Crim. App. 1994), the
appellant was convicted of capital murder, the Court of Criminal Appeals
approved of the parties charge given on the guilt/innocence phase of the trial
which read in pertinent part "and that the Defendant, acting with the intent to
promote or assist the commission of the offense of capital murder committed by
Isaac Johnson, or Nathan Clark, or Bryan Williams, solicited, encouraged, directed,
13 aided, or attempted to aid the said Isaac Johnson, or Nathan Clark, or Bryan
Williams to commit the said offense, if any, then you will find the Defendant guilty
of capital murder charged in the indictment."
In Vega v. State, 394 S.W.3d 514, 518 (Tex. Crim. App. 2013), the Texas
Court of Criminal Appeals, citing Delgado v. State, 235 S.W.3d 244, 249 (Tex.
Crim. App. 2007), pointed out that:
"The trial judge is 'ultimately responsible for the accuracy of the jury
charge and accompanying instructions.' Article 36.14 states that 'the
judge shall, before the argument begins, deliver to the jury, except
in pleas of guilty, where a jury has been waived, a written charge
distinctly setting forth the law applicable to the case.' The trial judge
has the duty to instruct the jury on the law applicable to the case even
if defense counsel fails to object to inclusions or exclusions in the
charge."
In Plata v. State, 926 S.W.2d 300, 304 (Tex. Crim. App. 1996), The Texas
Court of Criminal Appeals stated:
"For many years we have uniformly insisted that the State may not support
a jury verdict of guilty upon the theory that an accused was criminally responsible
14 for an offense committed by the conduct of another person unless the court's
charge specifically and adequately authorizes the jury to convict the accused upon
that theory. As in other contexts, a charge is adequate for this purpose only if it
either contains an application paragraph specifying all of the conditions to be met
before a conviction under such theory is authorized, or contains an application
paragraph authorizing a conviction under conditions specified by other
paragraphs of the jury charge to which the application paragraph necessarily and
unambiguously refers, or contains some logically consistent combination of such
paragraphs."
In instructing the jury on the application paragraph of the TEX. PENAL CODE
sec. 7.02(a)(2) theory of party liability, the trial court erred in informing the jury
that a guilty verdict of capital murder would require that the jury find beyond a
reasonable doubt that appellant had "the intent to promote or assist in the
commission of the offense of robbery ... (CR I: 101)" instead of the intent to
promote or assist in the commission of capital murder.
A trial court must fully instruct the jury on the law applicable to the case
and apply that law to the facts adduced at trial. Guevara v. State, 191 S.W.3d 203,
206 (Tex. App. -- San Antonio, 2005, PDRR 2006). This is because the jury must
15 be instructed under what circumstances they should convict, or under what
circumstances they should acquit. Gray v. State, 152 S.W.3d 125, 127-128 (Tex.
Crim. App. 2004). Jury charges which fail to apply the law to the facts adduced at
trial are erroneous. Id., at 128.
The trial court's erroneous instruction concerning party liability, pursuant
to sec. 7.02(a)(2), id., allowed the jury to find appellant guilty of capital murder
based upon an invalid legal theory that the jury only had to find beyond a
reasonable doubt that appellant acted "with the intent to promote or assist the
commission of the offense of 'robbery' ". The word "offense" as it appears in the
statutory language of sec. 7.02(a)(2) and as it should have been applied to
appellant's case could only have the meaning of "capital murder" since capital
murder was the "offense" which Vu Bui committed and the state was using the
language of sec. 7.02(a)(2) to hold the appellant Thanh Kim Hoang criminally
responsible as a party to the offense of capital murder that Vu Bui committed.
Appellant did not object to the error on the jury charge at trial. If error was
not objected to, it must be "fundamental" and requires reversal only if it was so
egregious and created such harm that the defendant "has not had a fair and
impartial trial.' " Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985, op.
16 on reh'g).
In determining whether appellant was egregiously harmed by the
erroneous jury instruction, this Court should examine the following four factors:
(1) the entire jury charge; (2) the state of the evidence, including contested issues
and the weight of the probative evidence; (3) the parties' arguments; and (4) all
other relevant information in the record. Id., at 171.
1. The Entire Jury Charge
This factor weighs in favor of finding egregious harm because the
erroneous TEX. PENAL CODE sec. 7.02(a)(2) party liability instruction permitted
the jury to return a guilty verdict based upon a invalid theory of criminal
responsibility, i.e., by stating that the jury was required to find that appellant had
the intent to promote or assist in the commission of the offense of robbery
instead of the offense of capital murder (CR I: 101). The erroneous declaration
that the offense for which the appellant had the intent to promote or assist was
robbery not only contravened the specific statutory language of sec. 7.02(a)(2),
but also improperly allowed the jury to base a guilty verdict of capital murder on
less than the proof required to show that appellant was criminally responsible for
the offense of capital murder which was committed by the conduct of Vu Bui.
17 2. The State of the Evidence
The state of the evidence was such that appellant could not have been
found guilty as a party to capital murder based on his own conduct since he did
not shoot the complainant (See State's Exhibit #43 at RR: 6: 42). Vu Bui shot and
killed the complainant. The state's prosecutor, Mr. Nathan Moss, conceded that
appellant could not be convicted of capital murder based on his own conduct (RR
5: 5).
Appellant contends that the fact that appellant could not have been found
guilty of capital murder based on his own conduct combined with the state's
seeking that the jury convict appellant for being criminally responsible for the
conduct of Vu Bui in the commission of capital murder pursuant to TEX. PENAL
CODE sec. 7.02(a)(2) weighs in favor of finding egregious harm from the
erroneous instruction which allowed the jury to find appellant criminally
responsible as a party to the offense of capital murder committed by Vu Bui
without having to find that appellant acted with the intent to promote or assist in
the commission of the capital murder (CR I: 101).
3. The Parties' Argument
18 The prosecutor, Mr. Moss, told the jury that appellant was not the shooter
and that the case was about party and co-conspirator liability. The significance of
the erroneous party liability instruction was that instead of having to find beyond
a reasonable doubt that the appellant had to have been acting with the intent to
promote or assist in the commission of the offense of capital murder as the
statutory language of sec. 7.02(a)(2) required, the jury was told that they only had
to find beyond a reasonable doubt that the appellant, Thanh Kim Hoang, acted
"with the intent to promote or assist in the commission of the offense of robbery
... (CR I: 101)"
Also, the erroneous sec. 7.02(a)(2) instruction would have improperly
impeded the jury's ability to consider the lesser included offense of felony
murder. The jury was instructed that they were to consider the lesser included
offense of felony murder only if they had a reasonable doubt or were unable to
agree that appellant was guilty of capital murder (CR I: 103). Appellant contends
that the erroneous sec. 7.02(a)(2) instruction made it much easier for the jury to
agree that appellant was guilty of capital murder since they would not be
required to find that he acted with the intent to promote or assist the commission
19 of capital murder (CR I: 101). The 3rd factor contributed to the egregious harm
resulting from the erroneous instruction.
4. Other Relevant Evidence In The Record
There is evidence in the record to support a theory that the appellant did
not act with the intent to promote or assist in the commission of the offense of
capital murder of the specific complainant Tuan Tu as alleged in the indictment
(CR I: 11). States witness Johnny Le testified that, when the shooting started, the
shorter man, the man without the gun, didn't do anything. (RR 3: 145). Witness Le
believed the short man was the first to run out of the store after the shooting
started. Witness Le never saw the short man direct the tall man to do anything
(RR 3: 146).
Witness Nghiep Le couldn't see after the shooting started because he was
under the table (RR 4: 32).
However, the erroneous jury instruction stating that the jury only had to
find beyond a reasonable doubt that the appellant had the intent to promote or
assist the offense or robbery instead of the offense of capital murder fatally
20 impeded the jury's consideration of evidence, which, if believed, could have
prevented him from being found guilty, as a party, pursuant to sec. 7.02(a)(2). The
4th factor also added to the egregiousness of the harm caused appellant.
Under an egregious harm standard, the erroneous jury instruction error
warrants reversal. "[T]he jury was told in the application paragraphs in the charge
that it could convict appellant on an invalid legal theory .... we can tell that
neither the rest of the charge, nor the evidence, nor the jury arguments set the
record right and that the jury was affirmatively told it must follow the law given it
in the charge." Green v. State, 233 S.W.3d 72, 83-84 (Tex. App. -- Houston [14th
Dist.] 2007).
Appellant was denied a fair and impartial trial due to the jury being
authorized to find him criminally responsible for and guilty of the offense of a
capital murder that was committed by another person Vu Bui without requiring
the jury to find beyond a reasonable doubt the essential element that appellant
acted with the intent to promote or assist the commission of the offense of
capital murder as required by sec. 7.02(a)(2). Id., at 85.
The jury was instructed pursuant to three possible theories of criminal
21 responsibility: (1) that appellant was criminally responsible as a party to the
offense of capital murder which was committed by appellant's own conduct; (2)
that appellant was criminally responsible as a party to the offense of capital
murder which was committed by the conduct of Vu Bui; or (3) that appellant was
criminally responsible for the offense of capital murder as part of a conspiracy.
Tex. Penal Code, sec. 7.01(a), 7.02(a)(2), 7.02(b); (CR I: 101-103).
In a case such as this where it is not possible to tell whether appellant was
convicted on an erroneous theory of criminal responsibility or on a valid theory of
liability, the jury charge affected the very basis of the case and denied appellant a
valuable right. Appellant was egregiously harmed. Robinson v. State, 266 S.W.3d
8, 15 (Tex. App. -- Houston [1st Dist.] 2008, PDRR 2009).
PRAYER FOR RELIEF
Appellant prays that this Court reverse the judgment of the court below
and remand the case for further proceedings. TEX. R. APP. PROC. 43.2(d).
Respectfully submitted,
22 /s/Charles Hinton_______________ Charles Hinton P.O. Box 53719 Houston, Texas 77052-3719 832-603-1330 chashinton@sbcglobal.net SBOT #09709800 Attorney for Appellant
CERTIFICATE OF COMPLIANCE
I certify that the word count of this document is 5202.
/s/Charles Hinton________________ Charles Hinton
CERTIFICATE OF SERVICE
I certify that a copy of appellant's brief has been electronically served upon
the attorney for the State, Mr. Alan Curry, Assistant District Attorney, 1201
Franklin, Houston, Texas 77002 on March 29, 2015.