Nguyen v. State

• Decision Date: 31 August 1998
• Docket Number: No. 03-96-00723-CR,03-96-00723-CR
• Citation: 977 S.W.2d 450
• Parties: Hoang Viet Huu NGUYEN, a/k/a Vic Nguyen, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 450

977 S.W.2d 450

Hoang Viet Huu NGUYEN, a/k/a Vic Nguyen, Appellant, v. The STATE of Texas, Appellee.

No. 03-96-00723-CR.

Court of Appeals of Texas Austin.

Aug. 31, 1998.

Allen C. Isbell, Houston, for Appellant.

Ronald Earle, District Attorney, Lisa Dotin Stewart, Assistant District Attorney, Austin, for Appellee.

Before POWERS, JONES and B.A. SMITH, JJ.

JONES, Justice.

Appellant Hoang Viet Huu Nguyen was convicted of murder, see Tex. Penal Code Ann. § 19.02(b) (West 1994), and engaging in organized criminal activity, see id. § 71.02. The jury assessed punishment at ninety-nine years' confinement in the Texas Department of Criminal Justice, Institutional Division, for each conviction. Nguyen appeals asserting five points of error: (1) the evidence is factually insufficient to support his conviction for murder, (2) the evidence is legally insufficient to support his conviction for engaging in organized criminal activity, (3) the evidence is factually insufficient to support his conviction for engaging in organized criminal activity, (4) the trial court erred in refusing to instruct the jury on criminally negligent homicide, and (5) the trial court erred in denying appellant's request that it order spectators to remove large buttons portraying a color photograph of the deceased while they were in the courtroom. We will affirm the murder conviction and reverse the conviction for engaging in organized criminal activity.

FACTUAL AND PROCEDURAL BACKGROUND

On April 21, 1995, Nguyen and a group of friends attended a party sponsored by the Asian Cultural Committee on the University of Texas campus. The party ended about 2:00 a.m. and a group of twenty-five to thirty young people decided to have breakfast at a Coco's restaurant located at IH35 and Oltorf Street in Austin. Also during this evening, the University of Texas Latin American Students Association sponsored a party. A group of four young men including Jose de la Morena left this party and also decided to have breakfast at Coco's.

The two groups were seated near each other in the restaurant. A female in Nguyen's group was walking back from the restroom past Morena's table when Morena said "show me your nipples" or "sugar nipples." She returned to her friends and told them about the remark. Her group soon left the restaurant, but seven males, including Nguyen, returned and confronted Morena's group in the restaurant demanding that the person who made the statement step outside.

Three bouncers from a local nightclub were eating nearby and came over to help calm the situation. The manager had someone call the police, and she asked Nguyen's group to leave and asked Morena and his friends to finish their meals and leave. Nguyen's group left immediately. Upon leaving the restaurant, Nguyen, Mike Ly, and Jason Pan agreed among themselves to return and fight. They eventually went to Nguyen's apartment, and someone told Nguyen to get the "gats," meaning guns. Nguyen retrieved a .22 semi-automatic rifle. As they left the apartment, Mike Ly's roommate, Linh Pham, joined the group.

The four rode back to Coco's in Mike Ly's small two-door car. Ly drove, Nguyen rode in the front passenger seat, Pan sat behind Nguyen, and Pham sat behind the driver. They testified that they intended to go back to the restaurant and scare Morena's group by shooting the gun. When they returned to Coco's, they circled the restaurant checking the area for police and verifying that their targets were still there. Ly parked the car next door to the restaurant. The group sat quietly waiting in the car for Morena's group to exit the restaurant.

Morena and two friends, Bryan Lord and Armando Gutierrez, left the restaurant just before 4:00 a.m. Ly saw the group leaving and started the car. He pulled the car onto the interstate access road just in front of Coco's. Morena and his friends were standing around Lord's Volkswagen when Nguyen began firing the rifle. Morena received a fatal shot to the head as well as a shot in the leg. Gutierrez received a shot in the leg, but Lord was not wounded.

At trial, Nguyen admitted that he fired the weapon, that Ly drove the car, and that Pan passed the gun to him from the backseat. He testified that he did not aim the rifle but merely intended to scare the victims. He testified he "freaked out" when he learned on the news the next night that Morena had died. Nonetheless, the jury convicted him of murder as well as engaging in organized crime.

DISCUSSION

In his first point of error, Nguyen asserts that the evidence is factually insufficient to support a conviction for murder. In a factual-sufficiency review, the appellate court reviews all the evidence without the prism of "in the light most favorable to the prosecution" used in a legal-sufficiency review the court may consider the testimony of defense witnesses and the existence of alternative hypotheses. Stone v. State, 823 S.W.2d 375, 381 (Tex.App.--Austin 1992, pet. ref'd untimely filed). The court should set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and manifestly unjust. Id.; see Clewis v. State, 922 S.W.2d 126, 136 (Tex.Crim.App.1996) (adopting the standard in Stone ). The appellate court reviews the evidence weighed by the jury that tends to prove the disputed facts and compares it to evidence that tends to disprove the disputed facts. Jones v. State, 944 S.W.2d 642, 647 (Tex.Crim.App.1996). The court must be appropriately deferential so as to avoid substituting its own judgment for that of the factfinder. Clewis, 922 S.W.2d at 133.

Based on the indictment and relevant statute, to be found guilty of murder, Nguyen had to have been found to have intentionally or knowingly caused Morena's death. ¹ See Penal Code § 19.02(b). A person acts intentionally to cause another's death when it is the actor's conscious objective or desire to cause that result. See id. § 6.03(a). A person acts knowingly to cause another's death when he is aware that his conduct is reasonably certain to cause that result. See id. § 6.03(b).

Nguyen admits that the only disputed element is his intent at the time he fired the rifle. To demonstrate the required intent, the State presented evidence that, although Nguyen fired only a limited number of times, two of those bullets hit Morena, another bullet hit Gutierrez (who was standing next to Morena), one hit the car next to Morena, two more hit nearby cars, one bullet hit a restaurant window, and another hit a tree just in front of the restaurant. The victims stood in the parking lot between Nguyen and the restaurant. The police found three empty shell casings, and Ly found no more than six casings in his car the next day. Gutierrez testified hearing seven or eight pops from the gun. We believe the evidence of the number of shots and the location of bullet holes raises a reasonable inference that Nguyen intended to hit the victim.

Nguyen points to the testimony of State witnesses to show why he and the others had returned to Coco's with the gun. All stated that they only returned to the restaurant to scare Morena's group. Nguyen himself stated, "I want the jury to know that there is never intent to hurt anyone. Not really to hurt anyone. And I want the family to know also that I never meant to hurt anyone." The distance between the shell casings found at the scene of the crime suggests the shots were fired from a moving vehicle. Nguyen asserts that the evidence of bullet holes over a wide area of the restaurant grounds indicates an intent to scare rather than an intent to hit a specific target. Ly testified that Nguyen did not shoot directly at Morena but up into the air. Nguyen contends that testimony the car was jerking and nearly stalled provides evidence of why Nguyen's attempt to merely scare Morena failed.

While Nguyen's testimony certainly challenges the State's evidence concerning his mental state at the time in question, the jury is the exclusive judge of the credibility of the witnesses. See Skillern v. State, 890 S.W.2d 849, 879 (Tex.App.--Austin 1994, pet. ref'd). Having reviewed all the evidence, including both Nguyen's statement that he was merely trying to scare Morena as well as evidence of the number and location of the gunshots, we conclude that the murder conviction is not so contrary to the overwhelming weight of the evidence as to be clearly wrong and manifestly unjust. Point of error one is overruled.

In his second point of error, Nguyen asserts that the evidence is legally insufficient to support a conviction for engaging in organized criminal activity. In reviewing the legal sufficiency of the evidence, we must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

Based on the indictment and the relevant statute, Nguyen could be found to have committed the offense of engaging in organized criminal activity if, with the intent to establish, maintain, or participate in a combination, he committed or conspired to commit aggravated assault by threatening or causing bodily injury to Morena with a deadly weapon. See Penal Code § 71.02(a)(1). The offense requires both a mental intent regarding a "combination" and the commission of one or more of a list of crimes. A "combination" is defined to mean "three or more persons who collaborate in carrying on criminal activities." Id. In particular, Nguyen asserts the evidence was insufficient to show that a "combination" existed.

In Barber v. State, 764 S.W.2d 232, 236 (Tex.Crim.App.1988), the court discussed the meaning of "combination." ² It stated that the term "collaborate" was not defined in the statute, but found a workable definition of "collaborate" to be "working together with a specified number of...