Vuong v. State

• Decision Date: 08 January 1992
• Docket Number: No. 70402,70402
• Citation: 830 S.W.2d 929
• Parties: Hai Hai VUONG a/k/a Hai Kien Vuong, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 929

830 S.W.2d 929

Hai Hai VUONG a/k/a Hai Kien Vuong, Appellant, v. The STATE of Texas, Appellee.

No. 70402.

Court of Criminal Appeals of Texas En Banc.

Jan. 8, 1992.

James A. DeLee, Port Arthur, for appellant.

Tom Maness, Dist. Atty., and John R. DeWitt, Asst. Dist. Atty., Beaumont, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

CAMPBELL, Judge.

Appellant was convicted of capital murder. Tex.Penal Code § 19.03(a)(6). At the punishment stage of the trial, the jury answered "yes" to each of the three issues prescribed by Article 37.071(b) of the Texas Code of Criminal Procedure. As required by Article 37.071(e) of the Code, the trial judge sentenced Appellant to death. Direct appeal to this Court is automatic. Tex.Code Crim.Proc. 37.071(h). Appellant asserts twelve points of error. We will affirm.

Appellant's fourth point of error asserts that the evidence at trial was insufficient to sustain a conviction for capital murder. We briefly summarize the relevant evidence adduced at the guilt-innocence stage of Appellant's trial, as viewed in the light most favorable to the verdict.

On December 7, 1986, Appellant was playing pool at the Tam Game Room ("Game Room")--a Vietnamese pool room and cafe--located in Port Arthur. Appellant left the premises and returned a short time later, accompanied by his friend Thien. Upon their return, Appellant, now armed with a semi-automatic rifle, entered the front door of the pool room, while Thien, armed with a pistol, stationed himself by the entrance to the cafe portion of the Game Room. Appellant then fired at least two shots into the ceiling, while warning the patrons not to try and leave. Appellant proceeded through the pool room firing a number of short bursts from his weapon, killing one individual and severely wounding three others. He then entered the cafe and fired his weapon point blank at a seated sixteen-year-old patron, killing him.

Of the approximately eleven shots fired by Appellant during this enterprise, seven struck individuals, two of whom were killed. Witness testimony depicted Appellant as walking methodically through both rooms and taking deliberate aim at his victims. All of the victims were unarmed.

In contrast to the evidence presented by the State, Appellant's confession and trial testimony sought to portray the conduct of Appellant as the product of irrational thinking, caused by earlier threats against Appellant by certain Vietnamese gang members. Appellant asserted that his intent upon returning to the Game Room with the automatic weapon was only to scare the gang members who had threatened him. However, Appellant himself testified that none of his victims were gang members. Appellant also contended, at various points in his testimony, that the shootings were accidental, self-defense, and/or the product of a runaway gun. Of course, the weight and credibility of Appellant's testimony was a matter for the jury to determine.

When addressing a sufficiency of the evidence argument, the reviewing court must determine whether, "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Butler v. State, 769 S.W.2d 234, 239 (Tex.Cr.App.1989), quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). Appellant's own testimony, as well as the overwhelming testimonial evidence offered by the various eyewitnesses, clearly demonstrates that Appellant shot and killed the two victims. In its brief, however, Appellant emphasizes that the State did not prove that Appellant intentionally or knowingly killed the two victims--pointing instead to a lack of motive and Appellant's "irrational thinking and behavior."

Appellant's use of a deadly weapon in a tavern filled with patrons supplies ample evidence for a rational jury to conclude beyond a reasonable doubt that Appellant had the requisite intent to kill: "The specific intent to kill may be inferred from the use of a deadly weapon, unless in the manner of its use it is reasonably apparent that death or serious bodily injury could not result." Godsey v. State, 719 S.W.2d 578, 580-81 (Tex.Cr.App.1986). Clearly, the use of an automatic weapon under these circumstances was a "manner of use" in which death or serious bodily harm was a likely result. In addition, there are a number of other factors that could have led a jury to reasonably believe Appellant's conduct was knowing or intentional, including: (1) the testimony of witnesses concerning Appellant's calculated demeanor, (2) evidence showing that seven of the approximately eleven shots fired during the criminal episode struck human targets, and (3) the fact that the victim Tien was shot twice directly in the face and the victim Hien was killed by a bullet that hit him squarely in the chin. Finally, we note that it is not required that the State show a motive in order to sustain a conviction of capital murder. Garcia v. State, 495 S.W.2d 257, 259 (Tex.Cr.App.1973).

In sum, the evidence adduced at the guilt-innocence stage of Appellant's trial was such that any rational trier of fact could have found that the State proved every essential element of its case beyond a reasonable doubt. Appellant's fourth point of error is overruled.

Appellant's first point of error charges the evidence was insufficient to sustain an answer of "yes" to issue number two, submitted to the jury at the punishment phase of the trial. ¹ We reject Appellant's argument.

At the punishment stage of Appellant's trial the State presented the following evidence: (1) Appellant's prior conviction for driving while intoxicated, for which he was put on probation; (2) a motion filed to revoke this probation, precipitated by Appellant's failure to comply with the terms of his probation agreement; and (3) an unadjudicated extraneous offense involving Appellant's arrest in connection with the seizure of weapons and allegedly illegal narcotics. In addition, there was expert psychiatric testimony that Appellant would be a continuing threat to society. Finally, the State presented the testimony of a second expert specializing in Vietnamese crimes and gangs, who testified that Appellant fit the profile of a typical Vietnamese gang member and that Appellant would constitute a future threat to society.

The standard of review for an insufficiency of the evidence claim as to special issue two is the same as set forth in our disposition of the preceding point of error; that is, whether the evidence, when viewed in the light most favorable to the verdict, would lead any rational trier of fact to find beyond a reasonable doubt that the answer to the special issue is "yes." Valdez v. State, 776 S.W.2d 162, 166 (Tex.Cr.App.1989). The jury may consider many factors when determining whether a defendant will be a continuing threat to society including, but not limited to, the following:

1. The circumstances of the capital offense, including the defendant's state of mind and whether he was acting alone or with others 2. The calculated nature of the defendant's conduct;

3. The deliberateness exhibited in the execution of the crime;

4. The existence and severity of any previous offenses committed by the defendant;

5. The defendant's age and personal circumstances at the time of the offense;

6. Whether, at the time of the offense, the defendant was acting under duress or the domination of another;

7. Psychiatric evidence; and

8. Character evidence.

Valdez, supra; Keeton v. State, 724 S.W.2d 58, 61 (Tex.Cr.App.1987).

When answering special issue two, the jury may properly consider all of the evidence adduced at the guilt stage of the trial. Santana v. State, 714 S.W.2d 1 (Tex.Cr.App.1986). The circumstances of the offense alone, if severe enough, can sustain an affirmative answer to special issue two as against a sufficiency challenge. Burdine v. State, 719 S.W.2d 309, 315 (Tex.Cr.App.1986).

Appellant argues that our resolution of his point of error should be governed by those prior decisions from this Court holding the evidence insufficient to sustain an affirmative answer to special issue two. See Huffman v. State, 746 S.W.2d 212 (Tex.Cr.App.1988), Beltran v. State, 728 S.W.2d 382 (Tex.Cr.App.1987); and Roney v. State, 632 S.W.2d 598 (Tex.Cr.App.1982). The State counterargues that the circumstances of the offense in the instant case, alone, are sufficient to sustain the jury's affirmative answer to special issue two. The State further asserts that the evidence produced at the guilt-innocence stage, when combined with the evidence offered at punishment, is equal or superior to that found sufficient in many of this Court's previous cases addressing this issue.

When the sufficiency of the evidence offered at punishment is challenged, this Court may examine other cases where the State has failed to present sufficient evidence. Huffman, supra. We have therefore reviewed those cases cited by Appellant, inter alia. See Garcia v. State, 626 S.W.2d 46 (Tex.Cr.App.1982); Brasfield v. State, 600 S.W.2d 288 (Tex.Cr.App.1980); Wallace v. State, 618 S.W.2d 67 (Tex.Cr.App.1981); Beltran, supra; Huffman, supra; and Roney, supra. We note, however, that each case must be resolved on its own facts. Santana, supra.

When reviewing such a sufficiency challenge it is appropriate for this Court to consider a number of factors, including: (1) the lack of psychiatric testimony concerning future dangerousness; (2) whether the circumstances of the crime indicate the defendant engaged in the criminal conduct without the intent to murder or commit other acts of violence; (3) the extent of a defendant's prior convictions; (4) the violent nature of a defendant's prior convictions and other unadjudicated offenses; (5) the age of the defendant at the time of the crime; and (6) whether the defendant was intoxicated or acting under...