Thong Quoc Pham v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: April 27, 2023
• Docket: 05-21-01088-CR
• Status: Published

Opinion

Affirmed and Opinion Filed April 27, 2023

In The Court of Appeals Fifth District of Texas at Dallas No. 05-21-01088-CR

THONG QUOC PHAM, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 416th Judicial District Court Collin County, Texas Trial Court Cause No. 416-82314-2021

MEMORANDUM OPINION Before Justices Pedersen, III, Goldstein, and Smith Opinion by Justice Pedersen, III A jury found appellant Thong Quoc Pham guilty of burglary of a habitation

with the intent to commit aggravated assault with a deadly weapon and assessed his

punishment at ninety-nine years. Appellant appealed the trial court’s judgment, but

his court-appointed appellate counsel has filed a motion to withdraw and

an Anders brief stating that the appeal is wholly without merit and

frivolous. See Anders v. California, 386 U.S. 738 (1967). We affirm the trial court’s

judgment and grant counsel’s motion to withdraw. Background

Appellant’s trial took place over two days, November 30 and December 1,

2021. The State’s first witness was Taylor Newsom. Newsom and his wife Amber

own the home in Wylie Texas where the burglary and assault occurred; the couple’s

two young daughters live there with them. Newsom testified that he and his wife

were awakened after midnight that night by the barking of their dog. When Newsom

came out of the bedroom and turned on a light, he discovered a strange man in the

house. In an effort to protect his family—Newsom’s wife and one young daughter

had come out into the living area of the house where he and the stranger were—

Newsom struck the man several times in the face. The intruder responded by

swinging his arm down and stabbing Newsom in the arm, causing Newsom to bleed

heavily and to back away. The dog continued to bark and snarl, and the intruder then

stabbed the dog multiple times before running out the back door. The Newsoms

called the police. Newsom identified appellant as the man who was in his home and

stabbed him that night.

The only other witness during the trial on guilt-innocence was Matthew

Peacock, a Wylie police officer, who responded to the Newsom’s call and oversaw

the investigation by a number of officers that early morning. The officers had

received a description of the burglar: a male, “possibly Hispanic,” wearing blue

jeans and black shoes with white stripes. Less than an hour after the police arrived,

appellant was discovered laying in a field, alongside the creek that ran about 150

–2– yards behind the Newsom home. He was wearing blue jeans and black shoes with

white stripes. Officer Peacock identified appellant as the man the police located and

arrested that night.

Both parties then rested and closed. The jury deliberated and found appellant

guilty.

During the punishment phase of the trial, the jury heard from five witnesses,

including Amber Newsom, two neighbors of the Newsoms and two women who

testified to earlier offenses by appellant. The jury assessed appellant’s punishment

at ninety-nine years.

This appeal followed.

The Anders Brief

In this Court, appellant’s attorney has filed a brief in which she concludes the

appeal is wholly frivolous and without merit. The brief meets the requirements of

Anders v. California, 386 U.S. 738 (1967). The brief presents a professional

evaluation of the record showing why, in effect, there are no arguable grounds to

advance. See High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App. [Panel Op.] 1978)

(determining whether brief meets requirements of Anders). Counsel delivered a copy

of the brief to appellant and notified him of his right to file a pro se response. We

also advised appellant of his right to file a pro se response. Appellant did request—

and receive—a copy of the record, but he did not file a response.

–3– We have reviewed the record carefully. Appellant made no objection to any

question or ruling during the voir dire proceeding. During this testimony of Mr.

Newsom, the State introduced thirty-five photographs depicting the Newsom home

after the break-in. Appellant’s counsel made no objection to the photographs or to

any questions asked during Newsom’s direct or redirect testimony. During Officer

Peacock’s testimony the State offered another nine photographs depicting the area

where appellant was found. Appellant stated again that he had no objection, and he

did not object during questioning of the officer.

Neither party had any objections to the trial court’s draft charge. Nor were

objections lodged during closing arguments.

Appellant did make an objection to one witness during the punishment phase

of his trial, W.T., who was the victim of an assault by appellant when she was a

child. There was discussion among the judge and lawyers concerning the offense,

which was originally charged as an aggravated sexual assault of a child, but was

subsequently reduced to a misdemeanor assault, for which appellant received

deferred adjudication. During the discussion, appellant’s counsel conceded the

judgment was admissible, see TEX. CODE CRIM. PROC. ANN. ART. 37.07 § 3(a)(1)1;

1 That section provides: Regardless of the plea and whether the punishment be assessed by the judge or the jury, evidence may be offered by the state and the defendant as to any matter the court deems relevant to sentencing, including but not limited to the prior criminal record of the defendant, his general reputation, his character, an opinion regarding his character, the circumstances of the offense for which he is being tried, and, notwithstanding Rules

–4– but he argued the testimony would be prejudicial to appellant. The discussion then

went off the record, but when the transcription continued, the court made no ruling

on the objection. Accordingly, appellant did not preserve this issue for our review.

See TEX. R. APP. P. 33.1(a)(2) (requiring ruling on objection as prerequisite to

presenting complaint on appeal). We agree with appellant’s counsel that this was not

an arguable issue for appeal.

Conclusion

Given our review of the record and counsel’s brief, we agree that the appeal

is frivolous and without merit. We find nothing in the record that might arguably and

substantively support the appeal of the trial court’s judgment. Accordingly, we

affirm the trial court’s judgment and grant counsel’s motion to withdraw.

211088f.u05 Do Not Publish /Bill Pedersen, III// Tex. R. App. P. 47 BILL PEDERSEN, III JUSTICE

404 and 405, Texas Rules of Evidence, any other evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt by evidence to have been committed by the defendant or for which he could be held criminally responsible, regardless of whether he has previously been charged with or finally convicted of the crime or act.

Id.

–5– Court of Appeals Fifth District of Texas at Dallas JUDGMENT

THONG QUOC PHAM, Appellant On Appeal from the 416th Judicial District Court, Collin County, Texas No. 05-21-01088-CR V. Trial Court Cause No. 416-82314- 2021. THE STATE OF TEXAS, Appellee Opinion delivered by Justice Pedersen, III. Justices Goldstein and Smith participating.

Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered this 27th day of April, 2023.

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