Ngo v. State

• Decision Date: 16 March 2005
• Docket Number: No. PD-0504-04.,PD-0504-04.
• Citation: 175 S.W.3d 738
• Parties: Thanh Cuong NGO, Appellant, v. The STATE of Texas.
• Court: Texas Supreme Court

175 S.W.3d 738

Thanh Cuong NGO, Appellant, v. The STATE of Texas.

No. PD-0504-04.

Court of Criminal Appeals of Texas, En Banc.

March 16, 2005.

COPYRIGHT MATERIAL OMITTED

Elizabeth L. Derieux, Longview, for Appellant.

Donald W. Rogers, Jr., Assist. DA, Houston, Matthew Paul, State's Attorney, Austin, for State.

Before the court en banc.

OPINION

COCHRAN, J., delivered the opinion of the Court in which MEYERS, PRICE, WOMACK, JOHNSON and HOLCOMB, J.J., joined.

Appellant was charged with credit card abuse under section 32.31 of the Texas Penal Code. The indictment contained three paragraphs, alleging three separate criminal acts—stealing a credit card, receiving a stolen credit card, and fraudulently presenting a credit card to pay for goods or services. The three application paragraphs in the jury charge permitted the jury to convict appellant if some of the jurors found that he stole the credit card, others believed he received a stolen credit card, and still others thought that he fraudulently presented it. The Eastland Court of Appeals held that this jury charge "did not require that the jurors unanimously agree upon any one of the three alternate theories," and thus, it violated both the Texas Constitution and state statutes which require a unanimous jury verdict.¹ The court of appeals further found that, although appellant affirmatively stated that he had "no objection" to the jury charge, this error was reversible under Almanza² because appellant suffered "egregious harm."³ We granted the State's petition for discretionary review to determine the correctness of that decision.⁴ Because we agree with the court of appeals' reasoning and result, we affirm its judgment.

I.

The evidence at trial showed that, on December 13, 2002, appellant went to a karaoke bar in Houston around 11 p.m. and ordered a couple of beers. He gave Hanh Nguyen, the Vietnamese manager of the bar, a credit card. The name on the credit card was Hong Truong. Mr. Nguyen was immediately suspicious because "Hong" is a woman's name, and, serendipitously enough, "Hong Truong" is the name of Mr. Nguyen's ex-wife. Mr. Nguyen immediately called his ex-wife and asked her to come down to the bar. Meanwhile, appellant pulled out a large stack of credit cards, as well as an HMO and dental plan card, all in the name of Hong Truong, and asked: "Which one of these can I use?" Mr. Nguyen declined to take any of them, and appellant sat quietly finishing his beer.

Mr. Nguyen told his security guard to call the police. They arrived at about the same time as Hong Truong. She told her ex-husband and the policeman that all of her credit cards had been stolen when her apartment was burglarized a few weeks earlier. She had come home from visiting her sick grandfather in the hospital on Thanksgiving Day and found that the lock on her window had been broken and her apartment ransacked. All of her credit cards had been in a purse in her bedroom closet. As far as she knew, none of the cards had been used after the burglary because she had called and canceled them. Ms. Truong identified the credit card that appellant had given to Mr. Nguyen as one of her credit cards that had been stolen during the burglary.

Ms. Truong had seen appellant around her apartment complex several times. He had knocked on her door before, but she did not open the door for him because she had a small child. Appellant had also asked her for money. He made her nervous.

Appellant testified that he had come to America from Vietnam and had lived here for eleven years, but he did not speak much English. He worked on a shrimp boat. He said that his friend Mike gave him the credit cards while they were playing pool. Mike wanted appellant to give the credit cards to Mr. Nguyen, so appellant waited at the bar until Mr. Nguyen came in. Meanwhile, he bought a beer and paid for it with cash. He insisted that he did not try to use a credit card to pay for the beer. "I don't know about credit card because I'm from Vietnam. I never use credit card. I know nothing about credit card." He denied burglarizing Ms. Truong's apartment or stealing any of her credit cards. He did admit to having a prior burglary conviction.

The application paragraphs of the jury charge instructed the jury to find appellant guilty if it concluded that he committed credit card abuse by any one of three separate acts.⁵ Appellant's counsel stated that he had no objection to the jury charge.

The prosecutor told the jury during his closing argument that the jury charge did not require that the jurors unanimously agree upon any one of the three alternate theories:

You know what? I have all the ways that we can prove it. You know, he even testified that, you know, he received the card from someone else.

I don't know how, you know—I don't know if I proved all three or one or two or all—I have no idea. You know, what I do know is that for sure the credit card, he had no right to use it. That's clear. And that he tried to present it and it was presented to Mr. Nguyen. And he was trying to get something for it. That's clear. That's how simple this is. (emphasis added).

The jury returned a general guilty verdict and sentenced appellant to two years in a state jail facility, plus a $3500 fine.

In his sole point of error on appeal, appellant argued that his constitutional and statutory right to a unanimous jury verdict was violated "by the disjunctive submission in the jury charge of two or more separate offenses."⁶ First, the court of appeals, presciently anticipating this Court's decision in Bluitt v. State,⁷ concluded that it could address the merits of appellant's complaint even though he had affirmatively said he had no objection to the jury charge.⁸ Second, the court of appeals held that the trial court erred in submitting the three separate offenses set out in application paragraphs of the jury charge in the disjunctive because such a charge would allow for a non-unanimous jury verdict.⁹ Third, it concluded that this error was "egregious" under Almanza "because it deprived appellant of his right to a unanimous jury verdict and, thus, denied appellant a fair and impartial trial."¹⁰ The court of appeals reversed the judgment of the trial court and remanded the case for a new trial.

II.

In its petition for discretionary review, the State contends that the court of appeals erred in finding that appellant was denied his right to a unanimous verdict. First, it argues that the application paragraphs merely set out alternate means of committing a single offense of credit card abuse, but those paragraphs did not allege separate credit card abuse offenses. Second, the State argues alternatively that the application paragraphs "merely showed repeated instances of commission of the offense of credit card abuse." Because appellant failed to request the State to elect which single offense it would rely upon for conviction, it was permissible to submit the three separate offenses in the disjunctive. Each juror could then decide which of the three criminal acts it thought the State had proven and return a general verdict so long as all of the jurors unanimously agreed that he had committed the general offense of credit card abuse. In sum, according to the State, there was no error, much less egregious harm.

Our first duty in analyzing a jury-charge issue is to decide whether error exists.¹¹ Then, if we find error, we analyze that error for harm.¹² Preservation of charge error does not become an issue until we assess harm.¹³ The degree of harm necessary for reversal depends on whether the appellant preserved the error by objection.¹⁴ Under Almanza, jury charge error requires reversal when the defendant has properly objected to the charge and we find "some harm" to his rights.¹⁵ When the defendant fails to object or states that he has no objection to the charge, we will not reverse for jury-charge error unless the record shows "egregious harm" to the defendant.¹⁶ Thus, we review alleged charge error by considering two questions: (1) whether error existed in the charge; and (2) whether sufficient harm resulted from the error to compel reversal.¹⁷ We turn first to the question of error.

A. Error existed in this jury charge because it allowed for a non-unanimous jury verdict.

The indictment charging appellant with credit card abuse under section 32.31 of the Penal Code alleged three statutorily different criminal acts:

1) stealing a credit card owned by Hong Truong;¹⁸

2) receiving a credit card owned by Hong Truong, knowing that it had been stolen, and acting with the intent to use it;¹⁹

3) presenting a credit card with the intent to obtain a benefit fraudulently, knowing the use was without the effective consent of the cardholder, Hong Truong.²⁰

The State charged all three offenses in three separate paragraphs within a single count of one indictment. It sought one conviction for the commission of one credit card abuse offense by proving any of three different criminal acts, occurring at three different times, and in three different ways.

When the State charges different criminal acts, regardless of whether those acts constitute violations of the same or different statutory provisions, the jury must be instructed that it cannot return a guilty verdict unless it unanimously agrees upon the commission of any one of these criminal acts.²¹ In this case, for example, all twelve members of the jury must unanimously agree that appellant did at least one of three different acts: either he stole Ms. Truong's credit card; or he received her credit card, knowing that it was stolen and intending to use it fraudulently; or he fraudulently presented her credit card with the intent to obtain a benefit.²² In this case, however, the word "unanimously" appeared only in the "boilerplate" section of the jury charge dealing with selection of the jury foreman:

After you retire to the jury room, you should select one of your members as your Foreman. It...