ACCEPTED
01-14-00722-CR
FIRST COURT OF APPEALS
HOUSTON, TEXAS
6/25/2015 12:22:22 PM
CHRISTOPHER PRINE
CLERK
01-14-00722-CR
###########
No. 01-14-00772-CR In the FILED IN Court of Appeals 1st COURT OF APPEALS HOUSTON, TEXAS
For the
6/25/2015 12:22:22 PM
First Judicial District of Texas CHRISTOPHER A. PRINE
At Houston Clerk
No. 1384675
In the 209th District Court of Harris County, Texas THANH KIM HOANG Appellant
v.
THE STATE OF TEXAS Appellee
STATE’S APPELLATE BRIEF DEVON ANDERSON
District Attorney
Harris County, Texas
CARLY DESSAUER
Assistant District Attorney NATHAN MOSS
Assistant District Attorney Harris County, Texas
1201 Franklin, Suite 600
Houston, Texas 77002
Tel.: 713/755-5826
Fax No.: 713/755-5809
ORAL ARGUMENT NOT REQUESTED
STATEMENT REGARDING ORAL ARGUMENT Pursuant to Texas Rule of Appellate Procedure 9.4(g) and Texas Rule of
Appellate Procedure 39.1, the State does not requests oral argument as the issue involved in this appeal can adequately be determined from the record and established law but wishes preserve its right to present oral argument if this Court desires to submit this case through oral argument.
IDENTIFICATION OF THE PARTIES Pursuant to Texas Rule of Appellate Procedure 38.2(a)(1)(A), a complete list of
the names of all interested parties is provided below.
Counsel for the State:
Devon Anderson District Attorney of Harris County Carly Dessauer Assistant District Attorney on appeal Nathan L. Moss Assistant District Attorney at trial David Bernard Assistant District Attorney at trial 1201 Franklin Street, Suite 600, Houston, Texas 77002
Appellant or criminal defendant:
Thanh Kim Hoang
Counsel for Appellant:
Charles Hinton Attorney on appeal P.O. Box 53719, Houston, Texas 77052 Kurt B. Wentz Attorney at trial 5629 FM 1960, Suite 115, Houston, Texas 77069
Trial Judge:
Hon. Wayne Mallia
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TABLE OF CONTENTS
STATEMENT REGARDING ORAL ARGUMENT .................................................... ii IDENTIFICATION OF THE PARTIES ......................................................................... ii TABLE OF AUTHORITIES ............................................................................................. iv STATEMENT OF THE CASE .......................................................................................... 1 STATEMENT OF FACTS .................................................................................................. 1 SUMMARY OF THE ARGUMENT ................................................................................. 3 REPLY TO APPELLANT’S POINT OF ERROR ......................................................... 3 I. The jury charge did not erroneously instruct the jury on the intent appellant needed to be a party to capital murder........................................................................... 3 a. The jury charge correctly required that the jury only convict appellant as a party to capital murder if it found that he had the intent to promote or assist Bui in killing Tu................................................................................................. 6 b. Assuming for the sake of argument that the jury charge was erroneous, appellant was not egregiously harmed by the instruction. ................................... 10 CONCLUSION ................................................................................................................... 13 CERTIFICATE OF COMPLIANCE .............................................................................. 14 CERTIFICATE OF SERVICE ......................................................................................... 15 APPENDIX .......................................................................................................................... 16
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TABLE OF AUTHORITIES
CASES Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1984) ................................................................... 4, 10 Holford v. State, 177 S.W.3d 454 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d) ...................... 9, 10 Nelms v. State, No. 01-13-00689-CR, 2014 WL 3738065 (Tex. App.—Houston [1st Dist.] July 29, 2014, pet. ref’d)
(mem. op., not designated for publication)................................................................. 7, 8 Ngo v. State, 175 S.W.3d 738 (Tex. Crim. App. 2005) ......................................................................... 4 Vasquez v. State, 389 S.W.3d 361 (Tex. Crim. App. 2012) ...................................................... 4, 5, 7, 8, 12
STATUTES TEX. CODE CRIM. PROC. ANN. art. 36.14 (West 2007) ...................................................... 5 TEX. PENAL CODE ANN. §7.01(a) (West 2011) .................................................................. 5 TEX. PENAL CODE ANN. §7.02(a)(2) (West 2011) .............................................................. 5 TEX. PENAL CODE ANN. §19.03(a)(2) (West Supp. 2014)................................................. 5 TEX. PENAL CODE ANN. §29.02(a) (West 2011) ................................................................ 5
RULES TEX. R. APP. P. 9.4(g) ............................................................................................................. ii TEX. R. APP. P. 9.4(i). ........................................................................................................... 14 TEX. R. APP. P. 38.2(a)(1)(A) ................................................................................................. ii TEX. R. APP. P. 39.1 ................................................................................................................ ii
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TO THE HONORABLE COURT OF APPEALS:
STATEMENT OF THE CASE
Appellant was charged with capital murder (CR at 11). Appellant entered a
plea of not guilty and request a jury trial to determine guilt (CR at 96; 3 RR at 16). The jury found appellant guilty, and since the State did not seek the death penalty, the court assessed punishment at confinement for life without parole (CR at 112, 114; 5 RR at 37, 40). The court certified appellant’s right to appeal, and appellant filed a timely notice of appeal (CR at 117-18).
STATEMENT OF FACTS
Appellant and his co-defendant, Vu Bui, went to Tuan Tu’s game room and
café, Café Chieu Tim (3 RR at 24; 4 RR at 29). The two other patrons present, brothers Nghiep and Johnny Le, were playing pool when they arrived (3 RR at 123, 125; 4 RR at 13, 14; State’s Ex. 43). Both brothers noticed the men as they were strangers, and the brothers were used to seeing only regulars at the café (3 RR at 125; 4 RR at 15-16). Indeed, Johnny was uncomfortable with them because, in addition to not knowing the men, they did not remove their jackets or sunglasses despite being inside and the weather being hot (3 RR at 126; State’s Ex. 43). Appellant and Bui sat down at a table and ordered iced coffee (3 RR at 126, 142; 4 RR at 16; State’s Ex. 43).1 After about thirty minutes of sitting, smoking, and occasionally talking with Tu,
1 Appellant’s DNA could not be excluded from DNA found at the scene on a pair of glasses, a glass, and a cigarette butt (3 RR at 39, 50; 4 RR at 66, 70; State’s 29, 58, 59).
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appellant and Bui walked up to the three men, and Bui pulled out a gun (3 RR at 127, 148; 4 RR at 17, 18; State’s Ex. 43).
Bui tapped the gun on Johnny’s shoulder as he was facing the pool table and was unaware of the unfolding robbery (3 RR at 129-30, 143). Appellant was at his side, ready to assist Bui in controlling the men (3 RR at 131). Bui instructed them to kneel, and appellant then told Johnny “to lay down” (3 RR at 130, 131, 149; 4 RR at 17, 18). However, Tu, who had a concealed handgun, drew his weapon to defend himself and his business from appellant and Bui (3 RR at 69, 135). Tu and Bui exchanged gunfire (3 RR at 135, 136; State’s Ex. 43). Bui shot at Tu until his gun was empty, hitting Tu twice in the chest and killing him (4 RR at 52; State’s Ex. 43).
Both Bui and appellant fled the scene (3 RR at 138). Appellant was later apprehended by police, but at the time of trial, Bui had not yet been apprehended (3 RR at 79, 85).
The evidence presented at trial established that Bui, not appellant, had fired the fatal shots that hit Tu during their robbery, so the trial court instructed the jury that it could find appellant guilty of capital murder as a principle, party, or co-conspirator to the offense (CR at 97-103). APPENDIX. The court also instructed the jury on the lesser included offenses of felony murder and aggravated robbery (CR at 103-106). Appellant did not object to the charge at trial (4 RR at 101).
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SUMMARY OF THE ARGUMENT
The trial court did not err when it instructed the jury on appellant’s requisite
mental state to be guilty as a party to capital murder as the charge required the jury to find that appellant had the intent to promote or assist Bui with the robbery in addition to the intent to solicit, encourage, direct, aid, or attempt to aid Bui in shooting and killing Tu. Appellant’s argument focuses on one portion of the jury charge and ignores that the charge as a whole correctly stated the law regarding party intent.
Analyzed as a whole, the court did not err in its charge, and appellant’s sole point of error should be overruled.
REPLY TO APPELLANT’S POINT OF ERROR I. The jury charge did not erroneously instruct the jury on the intent appellant needed to be a party to capital murder.
In his sole point of error, appellant argues that the trial court erred in charging the jury on the law of parties when it instructed that before the jury could find appellant guilty of capital murder as a party, it “must find from the evidence beyond a reasonable doubt that [appellant] with 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 at 101). Appellant alleges that the instruction allowed the jury to find him guilty as a party if it only found that he had intent to promote or assist the robbery without also having the intent to promote or assist Tu’s murder. Appellant’s
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argument focuses on the phrase that instructed the jury that it must find that appellant had the “intent to promote or assist in the commission of the offense of robbery” to support his claim (CR at 101). However, as the language of the whole charge shows, the court did not misinform the jury on appellant’s requisite intent as a party to capital murder. The instruction, as a whole, correctly required that the jury had to find that appellant had the intent to assist or promote Bui both in the robbery and in killing Tu. As such, the court’s instruction was not erroneous.
Standard of Review
A reviewing court’s first duty in analyzing a jury-charge issue is to decide whether error exists. Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). When examining the charge for possible error, reviewing courts “examine the charge as a whole instead of a series of isolated and unrelated statements.” Vasquez v. State, 389 S.W.3d 361, 366 (Tex. Crim. App. 2012) (quoting Dinkins v. State, 894 S.W.2d 330, 339 (Tex. Crim. App. 1995)).
Only if the court finds error, it must then conduct a harm analysis depending on whether the appellant objected to the error. Ngo, 175 S.W.3d at 743. When a defendant does not object to the court’s charge, the reviewing court can only reverse if the defendant suffered egregious harm. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984).
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Applicable Law
A trial court must instruct the jury on the “law applicable to the case” when charging the jury. TEX. CODE CRIM. PROC. ANN. art. 36.14 (West 2007). “Because the charge is the instrument by which the jury convicts, [it] must contain an accurate statement of the law and must set out all the essential elements of the offense.” Vasquez, 389 S.W.3d at 366 (quoting Dinkins, 894 S.W.2d at 339).
A person commits the offense of capital murder if he intentionally or knowingly causes the death of an individual in the course of committing or attempting to commit robbery. TEX. PENAL CODE ANN. §19.03(a)(2) (West Supp. 2014). A person commits robbery if, in the course of committing theft and with intent to obtain or maintain control of property, the person intentionally, knowingly, or recklessly causes or threatens bodily injury to another. TEX. PENAL CODE ANN. §29.02(a) (West 2011).
“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 ANN. §7.01(a) (West 2011). To be criminally responsible for an offense committed by the conduct of another, the person must act with the intent to promote or assist the commission of the offense by soliciting, encouraging, directing, aiding, or attempting to aid the other person to commit the offense. TEX. PENAL CODE ANN. §7.02(a)(2) (West 2011).
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Analysis
a. The jury charge correctly required that the jury only convict appellant as a party to capital murder if it found that he had the intent to promote or assist Bui in killing Tu.
In its instruction, the trial court charged the jury that it could find appellant guilty as a principle, as a party, and as a co-conspirator to the offense of capital murder (CR at 97-103). APPENDIX. Regarding the law of parties, the court first defined criminal responsibility as a party for the jury:
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 (CR at 100-01).
The court then gave the jury an instruction involving the law of parties and appellant’s charged capital murder:
Before you would be warranted in finding [appellant] guilty of capital murder, [… ] you must find from the evidence beyond a reasonable doubt that [appellant], 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 at 101).
Finally, the court gave the jury an application paragraph applying the law of parties to the facts of appellant’s charged capital murder:
If you find from the evidence beyond a reasonable doubt that on or about the 8th day of February, 2013, in Harris County, Texas, Vu Bui, did then and there unlawfully, while in the course of committing or attempting to commit the robbery of Tuan Tu, intentionally cause the death of Tuan Tu by shooting Tuan Tu with a deadly weapon, namely a firearm, and [appellant], with the intent to promote or assist the
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commission of the offense, if any, solicited, encouraged, directed, aided or attempted to aid Vu Bui to commit the offense, if he did[…] then you will find the defendant guilty of capital murder, as charged in the indictment (CR at 102-03).
As is evident from the charge as a whole, the trial court did not erroneously instruct the jury on the law of parties in a way that would have allowed the jury to convict appellant of capital murder if it only found that he had the intent to promote or assist the commission of the offense of robbery as appellant alleges on appeal. See Vasquez, 389 S.W.3d at 366 (requiring reviewing courts to review the jury charge as a whole). As the charge stated in the paragraph appellant claims to be erroneous, the jury could only find appellant guilty of capital murder if it found that appellant had both the “intent to promote or assist in the commission of the offense of robbery” and “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 at 101) (emphasis added). The charge did not omit the requisite intent to kill as appellant claims.
Indeed, the jury charge in appellant’s case is nearly identical to the charge recently analyzed by this Court in Nelms v. State. Nelms v. State, No. 01-13-00689-CR, 2014 WL 3738065, at *2 (Tex. App.—Houston [1st Dist.] July 29, 2014, pet. ref’d) (mem. op., not designated for publication). Nelms, like appellant, was convicted of capital murder; however, the aggravating element of his offense was the offense of burglary of a habitation. Nelms, 2014 WL 3738065, at *2. Nelms, like appellant, complained that the jury charge erroneously allowed the jury to find him guilty as a
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party to capital murder if it found that he had the intent to be a party to the aggravating offense when it instructed the jury that “you must find from the evidence beyond a reasonable doubt that [Nelms], with the intent to promote or assist in the offense of burglary of habitation.” Nelms, 2014 WL 3738065, at *3 (italics in original). Nelms, like appellant, argued that the correct instruction should have told the jury that his intent to promote or assist should have been directed towards the offense of capital murder instead of his aggravating offense of burglary of a habitation. Nelms, 2014 WL 3738065, at *3. However, appellant, like Nelms, failed to consider the charge as a whole when making his argument. Nelms, 2014 WL 3738065, at *3 (noting that jury charge also instructed the jury that it must find that Nelms “solicited, encouraged, directed, aided, or attempted to aid [Jones] in shooting [Nelson], if he did, with the intention of thereby killing [Nelson ]”) (italics in original).
For the same reason that this Court rejected Nelms’ argument, this Court should likewise reject appellant’s identical argument after analyzing the charge as a whole. See Vasquez, 389 S.W.3d at 366. The court’s entire jury charge involving appellant’s guilt on theory of the law of parties correctly informed the jury that appellant needed the intent to promote or assist Bui with the robbery as well as the intent to promote or assist Bui in killing Tu before it could find appellant guilty of capital murder as a party (CR at 101, 102-03). See Nelms, 2014 WL 3738065, at *3. The sentence that appellant focuses on in his argument does mention that appellant intend to promote or assist the offense of robbery, but the court’s instruction goes on
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to state that appellant also needed the intent to solicit, encourage, direct, aid, or attempt to aid Bui in shooting Tu to be criminally responsible as a party to capital murder (CR at 101). Additionally, the application paragraph set out similar language as the sentence appellant focuses on in his brief but does not designate the offense of robbery to be the offense appellant had to intent to commit (CR at 102-03). Instead, the court instructed the jury that it could find appellant guilty only if it found beyond a reasonable doubt that appellant intended “to promote or assist the commission of the offense” (CR at 102-03).
In Holford v. State, this Court upheld the jury charge over Holford’s claim that the charge allowed the jury to convict him as a party to capital murder if he intended to aid only in the robbery when the application paragraph “cautioned the jury” that it must also find intent to kill. Holford v. State, 177 S.W.3d 454, 460, 461 (Tex. App.— Houston [1st Dist.] 2005, pet. ref’d) (noting that the jury charge read: “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, David Charles Holford, 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 Harold Louis Vaughn in cutting or striking Trevor Cook, if he did, with the intention of thereby killing Trevor Cook”) (italics in original). In Holford, this Court noted that, when “read logically,” “the clause “solicited, encouraged, directed, aided or attempted to aid Harold Louis Vaughn to commit the offense” refers to the complainant’s murder. Holford, 177 S.W.3d at 461. The same
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logical reading applies to the party instruction in appellant’s charge in which the clause “solicited, encouraged, directed, aided, or attempted to aid Vu Bui in shooting Tuan Tu” refers to Tu’s murder (CR at 101).
Because the charge as a whole directed the jury that it needed to find that appellant had the intent to kill Tu before it could find him guilty as a party to capital murder, the court’s charge is not erroneous. Therefore, this Court should overrule appellant’s argument.
b. Assuming for the sake of argument that the jury charge was erroneous, appellant was not egregiously harmed by the instruction.
Assuming for the sake of argument that the trial court’s charge erroneously instructed the jury regarding the required intent appellant needed to be guilty of capital murder as a party, appellant’s conviction does not require reversal. Almanza, 686 S.W.2d at 171 (requiring that the defendant who does not object to the court’s charge at trial to suffer egregious harm to obtain a reversal). Had the trial court’s charge on party intent been erroneous, appellant, who did not object to the court’s charge at trial, was not egregiously harmed by the jury instruction (4 RR at 101).
Standard of Review
To determine whether a defendant has sustained egregious harm from a jury instruction, the reviewing court considers (1) the entire charge; (2) the state of the evidence, including contested issues; (3) arguments of counsel; and (4) any other relevant information. Holford, 177 S.W.3d at 461.
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Analysis
The jury charge did not egregiously harm appellant because, not only did the charge correctly instruct the jury correctly on the law of parties, the court also instructed the jury that appellant could be guilt as the primary actor or as a conspirator to the offense. While the evidence would not have supported appellant’s conviction as a primary, the evidence proved beyond a reasonable doubt that appellant was guilty as a party as well as a co-conspirator, and the jury could have found him guilty under either theory.
Eyewitness testimony, surveillance video, and DNA evidence put appellant at the scene of the offense (3 RR at 39, 50, 125-26; 4 RR at 13, 66, 70; State’s 29, 40; 43, 58, 59). The evidence showed that appellant and Bui entered the café together and that they did not need to tell each other what they were doing when they initiated the robbery, inferring prior planning (3 RR at 123, 125, 127, 147-48; 4 RR at 18). The evidence established that appellant acted in concert with Bui by following him, ready to provide assistance when Bui threated Tu and the Le brothers with his loaded gun, and appellant instructed the robbery victims to comply with their demands (3 RR at 129-31). Indeed, Johnny testified that when Bui placed his gun on his shoulder, appellant instructed him to lay down on the ground (3 RR at 149). Further, both Le Brothers testified that appellant was not surprised or afraid when Bui pulled out his gun (3 RR at 147, 149; 4 RR at 19, 20).
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The arguments of counsel also establish that appellant was not egregiously harmed by the trial court’s instruction as both the State and appellant’s statements to the jury agreed that the evidence only supported appellant’s guilt as a party or co- conspirator and both discussed the requisite intent appellant needed to be a party to capital murder (5 RR at 5, 8, 9, 14, 25). See Vasquez, 389 S.W.3d at 371-72 (discussing how both the prosecutor and Vasquez discussed party liability in their closing arguments when holding the jury charge error harmless). Appellant’s argument pointed the jury to the lesser included offenses of felony murder and aggravated robbery because appellant claimed that the evidence did not support his intent to kill Tu (5 RR at 8, 9-10). Because the arguments of counsel reiterated to the jury that appellant needed to intend to kill Tu to be guilty as a party to capital murder, he was not egregiously harmed by the error, if any, in the jury charge.
Indeed, the record, through the entire jury charge, the state of the evidence, and the arguments of counsel, supports that even if the trial court erred in its jury instruction on the intent needed for the jury to find appellant guilty as a party to capital murder, appellant was not egregiously harmed by the error. However, this Court does not need to depend upon an analysis of harm to uphold appellant’s conviction as the trial court did not err in its charge. Therefore, this Court should overrule appellant’s sole point of error.
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CONCLUSION
Based on the arguments stated above, the State of Texas respectfully urges the
Court to overrule appellant’s point of error and affirm his conviction.
DEVON ANDERSON
District Attorney
Harris County, Texas
/s/ Carly Dessauer
____________________________________________________________________________________________________________________________________________________________________________________
CARLY DESSAUER
Assistant District Attorney Harris County, Texas
1201 Franklin, Suite 600
Houston, Texas 77002
(713) 755-5826
State Bar No. 24069083
dessauer_carly@dao.hctx.net curry_alan@dao.hctx.net
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CERTIFICATE OF COMPLIANCE The undersigned attorney certifies that this computer-generated document has
a word count of 3,238 words, based upon the representation provided by the word processing program that was used to create the document. TEX. R. APP. P. 9.4(i).
/s/ Carly Dessauer
____________________________________________________________________________________________________________________________________________________________________________________
CARLY DESSAUER
Assistant District Attorney Harris County, Texas
1201 Franklin, Suite 600
Houston, Texas 77002
(713) 755-5826
State Bar No. 24069083
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CERTIFICATE OF SERVICE
The State will serve a copy of the foregoing instrument to appellant’s attorney
though TexFile:
Charles Hinton Attorney at Law P.O. Box 53719 Houston, Texas 77052-3719 chashinton@sbcglobal.net /s/ Carly Dessauer
____________________________________________________________________________________________________________________________________________________________________________________
CARLY DESSAUER
Assistant District Attorney Harris County, Texas
1201 Franklin, Suite 600
Houston, Texas 77002
(713) 755-5826
State Bar No. 24069083
Date: June 25, 2015
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APPENDIX
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I, Chris Daniel, District Clerk of Harris County, Texas certify that this is a true and correct copy of the original record filed and or recorded in my office, electronically or hard copy, as it appears on this date.
Witness my official hand and seal of office this June 19, 2015
Certified Document Number: 62067440 Total Pages: 17
Chris Daniel, DISTRICT CLERK HARRIS COUNTY, TEXAS
In accordance with Texas Government Code 406.013 electronically transmitted authenticated documents are valid. If there is a question regarding the validity of this document and or seal please e-mail support@hcdistrictclerk.com