Tu v State
| Citation | 61 S.W.3d 38 |
| Parties | <!--61 S.W.3d 38 (Tex.App.-Houston 2001) TAN KIEN TU, Appellant v. THE STATE OF TEXAS, Appellee NO. 14-97-00436-CR Court of Appeals of Texas, Houston (14th Dist.) |
| Decision Date | 09 August 2001 |
| Court | Court of Appeals of Texas |
On Appeal from the 337th Judicial District Court Harris County, Texas Trial Court Cause No. 727, 777
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[Copyrighted Material Omitted] Mike DeGeurin, Winston E. Cochran, Jr., Houston, for appellants.
William J. Delmore, III, Houston, for appellees.
Panel consists of Justices Lee, Dunn, and Amidei.*
A Harris County jury found appellant, Tan Kien Tu, guilty of engaging in organized criminal activity and assessed his punishment at 99 years' imprisonment and a $10,000 fine. See Tex. Pen. Code Ann. § 71.02 (Vernon 1994 & Supp. 2000). The indictment alleged that Tu, with the intent to establish, maintain, and participate in a criminal combination or the profits of a criminal combination, committed the offense of theft of more than $200,000 from five specified insurance companies, over a period of approximately fifteen months, pursuant to a single scheme or continuing course of conduct. After the trial court denied a pretrial motion for severance, Tu's case was consolidated with co-defendants Thomas Henry Gomoets, Randy Jarnigan, Alfonso Gonzalez, and Leighann Phan.1 In seven points of error, Tu argues that: (1) the conviction should be reversed because parts of the appellate record are missing; (2) the evidence is legally insufficient to support the verdict; (3) the trial court erred in denying his motion to quash the indictment; (4) the trial court erred in denying a severance; (5) the trial court erred in limiting cross-examination of Oscar Phu; (6) the trial court erred in prohibiting impeachment of Mong "Angie" Nguyen, an out-of-court declarant; and (7) Tu adopts points of error presented by other appealing defendants. We affirm.
In his first point of error, Tu argues that the appellate record is incomplete contending the large chart, the money trails book, and the audio tapes made by the undercover officer are missing. After submission of his brief, each of these items were forwarded for inclusion in the record. Accordingly, we overrule his first point of error.
In his second point of error, Tu argues the evidence is legally insufficient to support the jury's verdict. We disagree.
In reviewing legal sufficiency, we view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781 (1979); Margraves v. State, 34 S.W.3d 912, 916 (Tex. Crim. App. 2000). Thus, a "legal sufficiency of the evidence review does not involve any weighing of favorable and non-favorable evidence." Cardenas v. State, 30 S.W.3d 384, 389 (Tex. Crim. App. 2000). Our legal sufficiency standard of review is the same for both direct and circumstantial evidence cases. See Weyandt v. State, 35 S.W.3d 144, 149 (Tex. App. Houston [14th Dist.] 2000, no pet.).
Additionally, for the purpose of applying the Jackson legal sufficiency standard, the "essential elements" of the offense are those required by the "hypothetically correct jury charge." Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). The hypothetically correct jury charge is that which "accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried." Id.
A defendant commits the offense of engaging in organized criminal activity if, intending to establish, maintain, or participate in a combination or in the profits of a combination, he commits or conspires to commit theft. Tex. Pen. Code Ann. § 71.02(a)(1) (Vernon 1994 & Supp. 2000). A "combination" is defined as three or more persons who collaborate in carrying on criminal activities, although: (1) the participants may not know each other's identities; (2) membership may change from time to time; and (3) participants may stand in a wholesaler-retailer or other arm's-length relationship in illicit distribution operations. Tex. Pen. Code Ann. § 71.01(a) (Vernon 1994 & Supp. 2000); see Nguyen v. State, 1 S.W.3d 694, 695 (Tex. Crim. App. 1999). Barber v. State, 764 S.W.2d 232, 235 (Tex. Crim. App. 1988).
Because direct evidence is rarely available to prove the existence of an agreement, circumstantial evidence is sufficient and is almost always needed. See Burdine v. State, 719 S.W.2d 309, 315 (Tex. Crim. App. 1986). The fact finder may make its determination of the existence of an agreement based on events occurring before, during and after the commission of the offense and may rely on the actions of the defendant showing an understanding and a common design to do a criminal act. See Beier v. State, 687 S.W.2d 2, 4 (Tex. Crim. App. 1985). It is permissible to infer an agreement among a group working on a common project when each person's action is consistent with realizing the common goal. See McGee v. State, 909 S.W.2d 516, 518 (Tex. App. Tyler 1995, pet. ref'd).
At trial, the following witnesses detailed how auto accidents were staged and how Tu orchestrated the forwarding of insurance claims to attorneys and physicians:
Harris County Deputy Sheriff Charles Patberg
In March 1994, Patberg received information about possible insurance fraud from the Galveston County Auto Crimes Task Force. He began investigating, and, while undercover, ultimately met with several people who staged car accidents for insurance money. This group included Kenneth Johnson, Michael Ford, Angie Mong, and Mary Pressley, who, unbeknownst to the others was a police informant. At this meeting, Patberg was given $130 to purchase car insurance on an undercover car. He also learned that Angie Mong, who was present at the meeting, was a leader of the group.
After purchasing the insurance policy, Patberg contacted Angie Mong, who initiated the plans for his accident. She explained that because his Safeway Insurance, which she called "bad" insurance, did not pay claims easily, his car would be the "girl" car in the accident. The "girl" car was the car that got hit in the accident, as opposed to the "boy" car, which hit the girl car and accepted fault for the accident. Mong instructed Patberg to have a minimum of four occupants in the girl car. In the boy car, there was normally just a driver.
Mong explained to Patberg that these accidents were staged in the following manner: a group member took the boy and girl cars to a secluded location and hit them together. He would then pick up the debris from the vehicles, take both vehicles to another intersection, position the cars, throw the debris in the middle of the road, and call the police. When the police arrived, the driver of the boy car would say something like, "I'm sorry, I ran the red light," or The accidents were normally T-bone collisions. The boy car would always be the one at fault and would usually get a ticket.
On the evening of Patberg's accident, which Mong staged, the cars were positioned on the feeder road of the Gulf Freeway. After the accident, they pulled the vehicles to the side of the road. Mong then instructed the occupants of both cars to call the police and to blow their horn twice. When a Houston Police Department officer arrived, he issued the driver of the boy car a citation for running a stop sign.
After the staged accident, Patberg and the other participants went to a nearby restaurant and received partial payment for their involvement. Patberg received $600, which he split with everyone in his "girl" car. Further, while at the restaurant, Patberg and the other undercover officers completed a power of attorney form, which Mong provided. The form was blank, and Mong told them to just sign their names, but did not mention who the lawyer would be for their case.
Mong also instructed Patberg to go to a medical facility to see Dr. Thomas Gemoets. Without an appointment, he went to see Dr. Gemoets the next day. When he and the other car occupants arrived at the clinic, they told the receptionist that they were sent by Angie Mong. Office staff took Patberg's blood pressure and one x-ray. The car occupants, also undercover officers, did not have any x-rays taken. After his x-ray, Patberg went to see Dr. Gemoets in his office. Dr. Gemoets did not give Patberg any treatment, did not prescribe any medicine, and did not even get out of his chair.
Several months later, Mong asked Patberg to return to Dr. Gemoets. After this visit, she asked Patberg and the other car occupants to go to another doctor's office because there had been a mix-up at Gemoets's office.
Thus, Patberg next visited Dr. Alfonso Gonzalez. Again, no appointment was necessary. Mong instructed Patberg and the other car occupants to speak to a "Leighann" upon arriving at Gonzalez's office. They went to Gonzalez's office, and the receptionist told them to sign in. After signing in, Patberg told the receptionist that "Angie sent us, and we need to see Leighann." The receptionist then scratched their names from the sign-in sheet and told them to go to a separate room. In this room, they met Leighann Phan.
Phan asked the officers to fill out the same type...
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