Bui v. State

• Decision Date: 28 April 1998
• Docket Number: No. 06-97-00032-CR,06-97-00032-CR
• Citation: 964 S.W.2d 335
• Parties: Thieu Quang BUI, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 335

964 S.W.2d 335

Thieu Quang BUI, Appellant, v. The STATE of Texas, Appellee.

No. 06-97-00032-CR.

Court of Appeals of Texas, Texarkana.

Submitted Jan. 30, 1998.

Decided Feb. 25, 1998.

Rehearing Overruled April 28, 1998.

James Gregory Glass, Herb H. Ritchie, Houston, for appellant.

Barbara Anne Drumheller, Assistant District Attorney, for appellee.

Before CORNELIUS, C.J., and GRANT and ROSS, JJ.

OPINION

CORNELIUS, Chief Justice.

Thieu Quang Bui was charged with the felony offense of burglary of a habitation. The indictment alleged the use of a deadly weapon. Bui pleaded not guilty, and the case was tried before a jury. The jury found Bui guilty, made an affirmative finding that a deadly weapon was used, and set Bui's punishment at five years' imprisonment and a fine of $10,000.00.

Bui's family immigrated from South Vietnam, settled in Corpus Christi, and eventually moved to San Antonio. While attending school at the University of Texas in Austin, Bui became attracted to the complainant. He became obsessed with her and fantasized about her and the extent of their relationship. He intercepted her e-mail, and found out that she had a job for summer employment with Dow Chemical. He used this knowledge to meet with her and make business-related social engagements. After securing her trust, Bui told the complainant that he had previously been in a car accident in LaPorte, the city where she resided, and needed to see two doctors there for follow-up appointments. Using this pretext, Bui asked the complainant if he could spend the night at her apartment, and she agreed.

Bui spent the night on the complainant's couch, arose early the next morning, took her apartment keys, copied them, and then returned before she awoke. This was part of Bui's scheme whereby Bui planned to re-enter her apartment at a later date, knock her unconscious, take pictures of her in the nude, and fondle her. On January 30, 1996, Bui went back to the complainant's apartment with a ski mask, a ratchet, and a disposable camera. Once in the apartment, he decided that the ratchet was too small to use as a weapon, so he picked up a Duraflame log that was sitting in the fireplace. While Bui waited for the complainant to arrive, he passed about an hour reading the complainant's diary and looking through her things. When he heard the complainant's car pull up outside, he hid in the bathroom. The complainant entered her apartment and went to her bedroom, where she changed into a pair of shorts. She went into the bathroom and saw a figure standing in front of her wearing a ski mask. She then realized she was in danger, so she tried to immobilize Bui, but she failed. At this point she ran toward her door, but Bui caught up to her and began beating her about the head with the log. He tried to knock her unconscious by hitting her very hard ten to fifteen times. The complainant screamed that Bui was killing her and that she was dead. She testified that she felt she was going to die. Bui continued to hit her until the log broke. Bui was unable to render the complainant unconscious, so he abandoned his efforts and fled. The complainant suffered a broken nose, two black eyes, severe bruising on the back of her head, pain in her neck and back, rug burns, scrapes, and cuts on her legs.

Later in the year, Bui was interviewed by the University of Texas Police Department in Austin because he had been using the complainant's e-mail password to send sexually explicit messages to other students. The police knew of the complainant's attack and questioned Bui about it. Thereafter, Bui gave two written confessions outlining what he had done, except that he did not admit that he planned to wait for the complainant to come home or to take pictures of her. He did not admit this plan until he was cross-examined during the trial.

On appeal, Bui raises eight points. In general, these points contend that the court erred in failing to give certain lesser offense charges, that the evidence is legally and factually insufficient to support the conviction and the finding that the Duraflame log was a deadly weapon, that the court erred in allowing officers to opine that the log was a deadly weapon, that the court allowed improper jury argument, and that the jury charge was improper. We overrule these contentions and affirm the judgment.

In Bui's first point of error, he argues that the trial court erred in refusing to instruct the jury on the lesser included offenses of misdemeanor assault and criminal trespass. In a trial before a jury, a defendant is entitled to a jury instruction on a lesser included offense when (1) the lesser included offense is included within the proof necessary to establish the offense charged, and (2) some evidence exists that if the defendant is guilty, he is guilty only of the lesser offense. Penry v. State, 903 S.W.2d 715, 755 (Tex.Crim.App.1995); Rousseau v. State, 855 S.W.2d 666 (Tex.Crim.App.1993).

Criminal trespass and assault are within the proof necessary to prove burglary and aggravated assault, respectively. See Aguilar v. State, 682 S.W.2d 556, 558 (Tex.Crim.App.1985); Roberson v. State, 549 S.W.2d 749, 751 (Tex.Crim.App.1977); Day v. State, 532 S.W.2d 302, 306 (Tex.Crim.App.1975); Bennett v. State, 79 Tex.Crim.App. 380, 185 S.W. 14, 15 (1916); Phillips v. State, 790 S.W.2d 664, 668 (Tex.App.--Tyler 1988, no pet.); Hillburn v. State, 627 S.W.2d 546 (Tex.App.--Amarillo 1982, no pet.). The determination of whether these offenses are lesser included offenses of burglary of a habitation must be made on a case-by-case basis, because lesser included offenses are defined in terms of the facts of the case as well as the terms of the offense. Bohnet v. State, 938 S.W.2d 532 (Tex.App.--Austin 1997, pet. ref'd). If evidence from any source raises the issue of a lesser included offense, a charge on that offense must be included in the court's charge. Penry v. State, 903 S.W.2d at 755; Saunders v. State, 840 S.W.2d 390, 391 (Tex.Crim.App.1992). Here, the State was required to prove that Bui committed burglary of a habitation as alleged in the indictment, which means he must have entered the apartment with the intent to commit a felony or that he did commit or attempt to commit a felony while in the complainant's home without her consent. TEX. PENAL CODE ANN. § 30.02(a)(1),(3) (Vernon 1994). ¹ The State alleged that Bui had the intent to and attempted to commit aggravated assault while in the complainant's home. If testimony raised the issue that Bui entered the premises for purposes other than to commit an aggravated assault, he would be entitled to a charge on the lesser offense of criminal trespass. See Aguilar v. State, 682 S.W.2d 556, 558 (Tex.Crim.App.1985). Bui argues that there is evidence that he committed and intended to commit only simple assault, a misdemeanor, and not aggravated assault. The difference between a simple assault and an aggravated assault is that a person must cause serious bodily injury to another or use or exhibit a deadly weapon during the commission of the assault for it to be an aggravated assault. See TEX. PENAL CODE ANN. § 22.02 (Vernon 1994).

We must consider all the evidence introduced at trial, whether produced by the State or Bui. Penry v. State, 903 S.W.2d at 755. Additionally, the credibility of the evidence and whether it conflicts with other evidence or is controverted may not be considered in determining whether an instruction on a lesser included offense should be given. Penry v. State, 903 S.W.2d at 755; Saunders v. State, 840 S.W.2d at 391. There are two ways in which the evidence may raise the issue of a lesser included offense. Thomas v. State, 919 S.W.2d 810, 812 (Tex.App.--Houston [14th Dist.] 1996, pet. ref'd). First, there may be evidence which refutes or negates evidence of the greater offense. Saunders v. State, 840 S.W.2d at 391. Second, there may be evidence subject to different interpretations implicating the lesser included offense. Id. at 392. Anything more than a scintilla of evidence is sufficient to entitle a defendant to a lesser charge. Bignall v. State, 887 S.W.2d 21 (Tex.Crim.App.1994). A defendant's own testimony, though contradicted, is sufficient to require an instruction on a lesser included offense. Hunter v. State, 647 S.W.2d 657 (Tex.Crim.App.1983). A jury has the exclusive right to determine the appellant's intent at the time of the offense. Jones v. State, 900 S.W.2d 103, 106 (Tex.App.--Houston [14th Dist.] 1995, no pet.); Evans v. State, 781 S.W.2d 376, 379 (Tex.App.--Houston [14th Dist.] 1989, pet. ref'd).

The second prong of the test requires an examination of the record to see whether it presents an alternative factual scenario which, if believed, would support a finding of the lesser offense. McElhaney v. State, 899 S.W.2d 15, 18 (Tex.App.--Tyler 1995, pet. ref'd, untimely filed). The uncontradicted evidence in this case is that Bui intended when he entered her apartment to hit the complainant in the head and knock her unconscious. Further, the uncontradicted evidence is that he hit her on the head ten to fifteen times, until the Duraflame log broke to pieces. There is no evidence in the record that the Duraflame log was not a deadly weapon by the manner and means of its intended use. Thus, the record does not contain any evidence that, if Bui was guilty, he was guilty only of simple assault and, therefore, criminal trespass. The trial court did not err in refusing Bui's requested instruction on simple assault. Further, since there was no evidence of a simple assault, the trial court did not err in refusing Bui's instruction on criminal trespass.

In Bui's second and third points of error, he alleges that the evidence is legally and factually insufficient to support his conviction. In his fourth point of error, he contends that there is insufficient evidence in the record to support the finding that he used and exhibited a deadly weapon during the...