Ho v. State
| Decision Date | 11 August 2005 |
| Docket Number | No. 14-03-00495-CR.,14-03-00495-CR. |
| Citation | 171 S.W.3d 295 |
| Parties | Dinh Tan HO, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Supreme Court |
Tammy Tran, Houston, TX, for appellants.
Carol M. Cameron, Houston, TX, for appellees.
Panel consists of Justices YATES, EDELMAN, and GUZMAN.
This is an appeal from a murder conviction. Appellant Dinh Tan Ho argues in seven issues that the trial court erred by (1) denying appellant's motion for continuance, (2) admitting appellant's alleged co-actors' recanted statements to police, (3) admitting extraneous offense evidence, (4) improperly limiting appellant's Sixth Amendment right to confrontation, (5) admitting evidence of appellant's gang membership during the punishment phase of trial, (6) denying appellant's motion for mistrial, and (7) denying appellant's motion for new trial. We affirm.
In the early hours of December 7, 2001, David Bundy, Eric Harrison, Bayard Hill, Mike Miller, and Jabare Rattler left a downtown Houston nightclub and headed home. All five men rode in Harrison's vehicle, which Bundy drove. While still downtown, a blue Honda Civic occupied by three Asian men abruptly cut in front of Harrison's car, nearly causing a collision. At the next stoplight, Rattler began shouting obscenities toward the Civic and even got out of the car at one point to yell. After the light turned green, Bundy drove toward Highway 59, and the men eventually lost sight of the Civic.
Harrison testified that while traveling on Highway 59, he again saw the Civic as it approached Harrison's car from the right rear. Immediately thereafter, one of the passengers of the Civic fired multiple gunshots at Harrison's car. Bundy was shot and killed; Hill, Miller, and Rattler were also hit by gunshots. Rattler later identified appellant in a photo lineup as the shooter. Rattler and Miller identified Jay Le as the driver, and Harrison identified the blue Civic owned by Le as the car from which the shots were fired.
At trial, the State theorized that appellant was the shooter, Le the driver, and Richard Hoang the backseat passenger of Le's Civic. After the shooting, Le and Hoang both made statements to police that they were not with appellant at the time of the shooting and that appellant had admitted to shooting some people on the freeway. Both men recanted their statements that appellant admitted to the shooting, but maintained that they were not with appellant when the shooting occurred. Le testified that appellant had borrowed his car during at least the first two weeks of December 2001 and was in possession of it during the time of the shooting. A jury convicted appellant of murder and assessed punishment of fifty years' imprisonment and a $10,000 fine.
In his first issue, appellant contends that the trial court erred in denying his motion for continuance.2 Three days before trial began, appellant filed a motion for continuance due to an absent witness. The trial court denied this motion on the day the trial began. At the close of evidence, appellant re-urged his motion for continuance, which the court again denied. Appellant complains this was an abuse of discretion.
Article 29.06 of the Code of Criminal Procedure requires that a motion for continuance based on the absence of a witness must, among other things, state "[t]he diligence which has been used to procure [the witness's] attendance." TEX.CODE CRIM. PROC. ANN. art. 29.06 (Vernon 1989). The Court of Criminal Appeals has interpreted this to mean not only diligence in procuring the presence of the witness, but also diligence as reflected in the timeliness with which the motion for continuance was presented. Dewberry v. State, 4 S.W.3d 735, 756 (Tex.Crim.App.1999); see also Gonzales v. State, 505 S.W.2d 819, 821 (Tex.Crim.App.1974) (). Similarly, diligence must be shown in applying for a subpoena for the absent witness. See Varela v. State, 561 S.W.2d 186, 190 (Tex.Crim.App.1978) (). Further, the Court of Criminal Appeals has long found that diligence in procuring the witness is not shown if several months have passed between the issuance of the indictment and the filing of an application for subpoena. See, e.g., Welch v. State, 153 Tex.Crim. 416, 219 S.W.2d 804, 805-06 (1949) (); Fuller v. State, 99 Tex.Crim. 475, 270 S.W. 169, 170 (1925) (); see also Dewberry, 4 S.W.3d at 756 ().
Here, appellant was indicted on January 3, 2002. Phuong Vu's affidavit explaining that he was with appellant on the night of the shooting was taken six days later, on January 9, 2002. Appellant filed the motion for continuance on April 11, 2003, just three days before trial began and after the trial date had been reset three times. Appellant applied for a subpoena for Vu approximately two weeks before trial, on March 28, 2003, even though appellant knew of Vu's potential importance as a witness long before this date. Ultimately, appellant waited almost fifteen months after being indicted before applying for a subpoena for Vu. We find that appellant has failed to meet the requirement of diligence as required by article 29.06.
Also, the record does not indicate a probability that Vu's presence would have been secured had the trial court granted the continuance. According to the affidavit attached to the initial motion for continuance, appellant's investigator first attempted to serve Vu with the subpoena on April 1, 2003. Three weeks later and ten days after the initial motion for continuance, appellant renewed the motion at the close of evidence on April 21, 2003. In denying the renewed motion, the trial judge indicated that he did not want to grant a continuance for a person who may never show up. These circumstances do not present compelling grounds for a continuance. See Rodriguez v. State, 21 S.W.3d 562, 566 (Tex.App.-Houston [14th Dist.] 2000, pet. ref'd). We find that the trial court did not abuse its discretion in denying appellant's motion for continuance accordingly, we overrule appellant's first issue.
Appellant argues in his second and third issues that certain evidence admitted at trial violated Rules 401 and 403 of the Texas Rules of Evidence. See TEX. R. EVID. 401, 403. In his second issue, appellant contends that the trial court erred in admitting evidence of prior statements made to police by Le and Hoang, whom the State contends were with appellant at the time of the shooting. In his third issue, appellant argues that the trial court erred in admitting evidence of extraneous offenses; specifically, appellant complains of testimony regarding a bullet hole found in Le's car and evidence that appellant discussed a shooting and demonstrated shooting a gun outside Le's grandmother's house a few hours after the freeway shooting. Appellant contends that this evidence is not relevant under Rule 401 and that its prejudicial effect outweighs its probative value under Rule 403.
In unsworn statements given to police after the shooting, Le and Hoang both stated that they were not with appellant at the time of the shooting and that appellant admitted to shooting at some people on the freeway. At Le's trial for his involvement in the shooting, which occurred a few weeks prior to appellant's trial, both men apparently recanted their statements that appellant had admitted being involved in a shooting. Over appellant's objection, the trial court permitted the State to question Le and Hoang about their statements provided that the State made it clear that Le and Hoang had recanted the statements. On appeal, appellant argues that the trial court's admission of testimony regarding the recanted statements violates Rules 401 and 403 of the Texas Rules of Evidence.
Under Rule 401, evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." TEX.R. EVID. 401. "Evidence need not by itself prove or disprove a particular fact to be relevant; it is sufficient if the evidence provides a small nudge toward proving or disproving some fact of consequence." Stewart v. State, 129 S.W.3d 93, 96 (Tex.Crim.App.2004).
The State's theory at trial was that Le and Hoang were with appellant when the shooting occurred. Evidence that both Le and Hoang made statements to police that appellant admitted to being involved in a freeway shooting and later recanted them is relevant. The statements, even if recanted, indicate that Le and Hoang had knowledge that a freeway shooting had occurred. The statements also show Le's and Hoang's willingness to implicate appellant in order to exonerate themselves. Evidence that shows Le's and Hoang's knowledge of the shooting and their willingness to implicate appellant is relevant because it makes the State's theory that all three men were involved more probable than the theory would be without the evidence.
Under Rule 403, relevant evidence may be excluded if its probative value is substantially...
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