HUAN HUU NGUYEN, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM in part, REVERSE and REMAND in part and Opinion Filed August 18, 2008
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-06-00403-CR
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HUAN HUU NGUYEN, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 204th Judicial District Court
Dallas County, Texas
Trial Court Cause No. F06-00003-IQ
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OPINION
Before Justices O'Neill, Richter, and Lang
Opinion By Justice Richter
        Huan Huu Nguyen appeals his jury conviction and court-assessed sixty-five year sentence for engaging in organized criminal activity by committing murder while acting as a member of a criminal street gang. In seven issues, Nguyen asserts (a) the evidence is legally and factually insufficient to support his conviction and legally insufficient to support the first of two enhancement paragraphs; (b) the indictment and charge were defective; and (c) the trial court erred in admitting testimony concerning extraneous violent gang activities and in failing to define reasonable doubt in the jury charge. For the reasons that follow, we affirm the conviction, but reverse the sentence and remand for a new punishment hearing.
 
Background
        Nghia Nguyen   See Footnote 1  (Nghia) and his brother-in-law Huong Luong were sitting on the front porch of their house smoking in the early morning hours of July 16, 1998 when ten men in three cars pulled up to the house. The men, many of whom Nghia knew, fired several shots and then left. Luong died of multiple gun shot wounds and Nghia was severely injured. At the scene, Nghia stated only that the shooters were Vietnamese, but subsequently, he identified four of the men and his family provided a picture of them. One of the men was Nguyen; the other three were Hung Nguyen (Hung), Trieu Nguyen (Trieu), and “Tommy.”   See Footnote 2 
        Although he had the name and a picture of Nguyen, lead police investigator Alan Frizzell was unable to obtain an arrest warrant for Nguyen until 2002 when a confidential informant in California informed authorities of Nguyen's involvement in the shooting. Nguyen was arrested two years later and charged with the offense.
        The trial was held in March 2006 and consisted primarily of the testimony of Nghia, Frizzell, officer Patrick Akins, crime scene investigator Kathy Isbell, confidential informant Hanh Dam, California police officer Ron Echavarria, and Nguyen's wife Thuy “Tiffany” Kha.   See Footnote 3  Nghia, the State's first witness, testified he and Luong “socialized” with Nguyen, Hung, and Trieu-the “California boys”-and got together weekly to drink and watch sports. Approximately four hours before the shooting, while outside playing with his dog, Nghia saw Nguyen, Hung, Trieu, and Tommy drove slowly by his house, followed later by another car. Nghia went inside and mentioned it to his wife. A bit later, he went back outside to wait for Luong to come home from work. When Luong arrived home, Nghia mentioned to him that the “California boys” had driven by the house. Luong seemed unconcerned and the two men stayed outside talking. About fifteen minutes later, the shooting began. Luong was hit first and Nghia was hit as he tried to “pull [Luong] down” behind a bush. According to Nghia, the assailants shot at the house, yelling they would kill the entire family. Nghia testified that he initially did not identify the assailants because in the Vietnamese culture, “when something [is] wrong, you keep it in the family.”
        Akins testified he had heard the gun fire from a nearby parking lot and initially believed it was firecrackers. He was called to the scene and arrived to find “chaos,” with “family members screaming” and “running around,” “bullet casings everywhere,” “broken glass all over the place,” and bullet holes in the house and in a car parked up front. Akins testified he found Luong unresponsive and Nghia “in a lot of pain with two gunshot wounds.”
        Isbell testified she collected several shell casings and a gun, believed to be Luong's, at the scene. From the casings, it appeared at least three different weapons were used, including an assault rifle. According to Isbell, at least ten shots were fired at the house.
        Frizzell testified Nghia and his family were scared and hesitant to talk, although Nghia did provide him a statement and the family provided the picture. Although two of the assailants Nghia identified were arrested shortly after the shooting and murder, Frizzell was unable to locate Nguyen immediately because he did not have the necessary “identifiers” such as date of birth, social security number, or driver's license number. The “break” came when California detective Ron Echavarria contacted him concerning one of the other assailants. Echavarria provided Frizzell with the “necessary identifiers” and Frizzell was able to prepare a photographic line-up to present to Nghia. Nghia identified Nguyen immediately and a warrant was issued for Nguyen's arrest. On cross- examination, Frizzell admitted he knew Nguyen had a girlfriend-Kha-at the time of the murder, but he did not contact her as part of his investigation.
        Hahn Dam testified he was a former member of the “V,” a violent Vietnamese gang, and was under the witness protection program in California. He knew Nguyen, Hung, and Trieu from the “V.” Nguyen was a proud Texas member and a “shot caller”-very well respected because of the violent nature of the crimes he committed. Dam testified he learned of Nguyen's involvement in the murder when Nguyen and Hung visited him shortly after the shooting. Nguyen told him he and Hung had gotten into a “big fight” with Luong at a beauty shop and decided to kill him. Nguyen was “bragging” and even showed him a newspaper article on the shooting. According to Dam, Nguyen visited him because he had “connections in Vietnam” and had helped some of his friends “go in hiding” there. At the time, Dam was still an active member of the “V.”
        Echavarria, the State's last witness, testified he was a police officer in Orange County, California and had specialized training in gang activity, particularly Asian gangs. He was very familiar with the “V,” a gang that had originated in California and spread to several other states including Texas, and had worked closely with Dam after Dam agreed to be a confidential informant. Echavarria testified the “V” was “deadlier” and “more sophisticated” than other gangs. Its members were known for their violent crimes, use of assault rifles, and distinctive tattoos, some of which Nguyen had. In Echavarria's opinion, Nguyen was a gang member at the time of the shooting and the shooting was “consistent” with the type of crimes associated with the “V.”
        Testifying for the defense, Kha stated she started dating Nguyen in 1997 and they considered themselves common-law married. Both she and Nguyen liked tattoos and had several, but none represented gang membership. She testified Nguyen was asleep with her at the time of the shooting and denied he was a gang member.
 
Sufficiency of the Evidence
        In his first and second issues, Nguyen asserts the evidence is legally and factually insufficient to support his conviction. Specifically, he argues the evidence is insufficient because the State failed to prove a motive for the shooting and murder. Additionally, he argues the evidence is insufficient because Nghia initially failed to identify him as an assailant, Dam failed to testify unequivocally that Nguyen was a gang member at the time of the shooting, and Kha testified that Nguyen was not a gang member. As a result of the state of the evidence, Nguyen maintains, his conviction should be reversed.
        Our question in a sufficiency challenge is whether a rational trier of fact could have found beyond a reasonable doubt the essential elements of the offense. Watson v. State, 204 S.W.3d 404, 415 (Tex. Crim. App. 2006); Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). In reviewing a legal sufficiency challenge, we view the evidence in the light most favorable to the verdict, bearing in mind that the fact-finder is the exclusive judge of the witnesses' credibility and the weight given to the evidence. Moff v. State, 131 S.W.3d 485, 488 (Tex. Crim. App. 2004); Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996). In reviewing a factual sufficiency challenge, we view the evidence in a neutral light and may substitute our judgment for the fact-finder's on the question of witness credibility and weight of evidence determinations but only “to a very limited degree.” Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006), cert. denied, 128 S. Ct. 87 (2007). We will reverse a verdict of guilty on a factual sufficiency challenge only when we can say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the verdict. Watson, 204 S.W.3d at 417.
         To establish Nguyen's guilt, the State had to prove beyond a reasonable doubt that Nguyen, “with the intent to establish, maintain, or participate . . . as a member of a criminal street gang,” committed murder.   See Footnote 4  See Tex. Penal Code Ann. § 71.02(a)(1) (Vernon Supp. 2008). To establish Nguyen was a member of a criminal street gang, the State had to prove the “V” consisted of “three or more persons having a common identifying sign or symbol or an identifiable leadership who continuously or regularly associated in the commission of criminal activities.” Id. § 71.01(d) (Vernon 2003). Proof of motive for the killing was not required. See Russo v. State, 228 S.W.3d 779, 794 (Tex. App.-Austin 2007, pet. ref'd) (motive is not element of any crime and need not be proved at trial).
        The record here reflects that Nghia saw Nguyen, Hung, Trieu, and Tommy drive by before the shooting and then return once Luong was home. Accompanied by six other men, Nguyen, Hung, Trieu, and Tommy shot at Nghia and Luong and at the house, threatening to kill the entire family. Luong was killed and Nghia was seriously injured. Nghia socialized with these men and unequivocally identified Nguyen as one of the assailants. Nguyen later bragged to another “V” member-Dam-that he and the others had killed Luong because of an earlier argument with Luong. This evidence established Nguyen's identity and that he committed murder. See id. § 19.02(b) (Vernon 2003) (person commits murder if he intentionally or knowingly causes death of another); Kesaria v. State, 148 S.W.3d 634, 641 (Tex. App.-Houston [14th Dist.] 2004, no pet.) (positive identification by victim sufficient to sustain conviction). Additionally, the State presented testimony that (1) Nguyen, Hung, Trieu, and Tommy were all members of the “V,” a violent Vietnamese gang, and Nguyen sported several tattoos associated with the “V,” (2) Nguyen was “very well respected” in the gang because of the violent nature of the crimes he had committed, (3) Nguyen and Hung told Dam, an active “V” member, they killed Luong after fighting with him earlier in the day and even showed Dam a newspaper article on the shooting, (4) Nguyen and Hung visited Dam in California because they knew he had helped other “V”members “hide in Vietnam,” and (5) the shooting was “consistent” with the type of crime the “V” was known to commit. This evidence established Nguyen's membership in a criminal street gang. See Chaddock v. State, 203 S.W.3d 916, 922 (Tex. App.-Dallas 2006, no pet.) (concluding State's evidence showing appellant associated with at least two other skinheads in gang with distinctive symbols, associated with identifiable leader, and engaged in pattern of assaultive behavior legally sufficient to support finding that he was member of criminal street gang). Although not necessary, it also established a motive for the killing. Given the record before us, we conclude the jury could have rationally found beyond a reasonable doubt the elements of the offense.
        Although Nghia did not initially identify Nguyen as one of the shooters, he explained that in the Vietnamese culture, “you keep everything within the family.” Additionally, the record reflected he was in a lot of pain when he was first questioned and was scared. To the extent Nguyen suggests Nghia was not credible because he was initially not “forthcoming,” it was for the jury as the fact finder to determine what weight to give Nghia's testimony. Marshall, 210 S.W.3d at 625; Jones, 944 S.W.2d at 647. Further, although Dam did not specifically testify Nguyen was an active member of the “V” at the time of the shooting and Kha denied Nguyen was a gang member, Dam testified that Nguyen sought his help knowing his reputation among “V” members and Echavarria opined that Nguyen was an active gang member. Again, it was for the jury to determine what weight to give this testimony. Marshall, 210 S.W.3d at 625; Jones, 944 S.W.2d at 647. Given the verdict of guilt, the jury necessarily found the State witnesses credible and disregarded Kha's testimony. This was within the jury's prerogative and we will not disturb that finding. Marshall, 210 S.W.3d at 625; Jones, 944 S.W.2d at 647. Viewing the evidence under the appropriate standard, we conclude the evidence was both legally and factually sufficient to support the conviction. We resolve Nguyen's first two issues against him.
         The Indictment and Jury Charge
        In his third issue, Nguyen complains the indictment and jury charge were defective because they both omitted the “requisite mental state” provided in section 71.02 of the penal code. As stated, that section specifically provides that a person commits the offense of engaging in organized criminal activity if, “with the intent to establish, maintain, or participate . . . as a member of a criminal street gang, he commits or conspires to commit murder.” Tex. Penal Code Ann. § 71.02(a). The indictment and charge, however, omitted the “with the intent” language and referenced only whether Nguyen “as a member of a criminal street gang” committed murder. Nguyen maintains this error was harmful and as such, his conviction should be reversed. Nguyen, however, asserts this complaint for the first time here on appeal. Yet, to preserve error with respect to any defect in the indictment, he needed to object prior to the commencement of trial. See Tex. Code Crim. Proc. art. 1.14 (Vernon 2005); Teal v. State, 230 S.W.3d 172, 182 (Tex. Crim. App. 2007). And, although he can complain about the charge for the first time on appeal, he can only succeed if in fact error occurred and he was egregiously harmed-that is, he was denied a fair and impartial trial, he was deprived of a valuable right, or his defensive theory was “vitally affected.” Bluitt v. State, 137 S.W.3d 51, 53 (Tex. Crim. App. 2004); Batiste v. State, 73 S.W.3d 402, 407 (Tex. App.-Dallas 2002, no pet.). Assuming error, we conclude no such harm resulted here.
        In arguing that he was egregiously harmed, Nguyen notes the State focused upon his “alleged” membership in a criminal street gang but never addressed any motive for the murder, showed how the murder was in any way related to his alleged gang membership, or showed that he was even a gang member. As discussed already in the section on the sufficiency of the evidence, however, the record as a whole reflects otherwise. Moreover, to show “intent,” the State had to show it was Nguyen's “conscious objective or desire to engage in the conduct”-to participate as a member of the “V.” See Tex. Penal Code Ann. §§ 6.03(a), 6.04(a) (Vernon 2003). By establishing Nguyen's membership in the “V” through the testimony that he committed the offense with several other known members of the “V” and committed the offense in a manner consistent with other “V” crimes, the State necessarily showed Nguyen's intent, or “conscious objective or desire,” to participate as a gang member in committing the crime. We resolve Nguyen's third issue against him.
        
Admissibility of Gang Evidence        
        In his sixth issue, Nguyen asserts the trial court abused its discretion when it admitted evidence of “violent gang activities that were wholly unconnected to [him].” Relevant to this issue, the record reflects that prior to trial, Nguyen objected to any gang-related evidence on the grounds of hearsay, relevance, unfair prejudice, vagueness, and due process violations. The trial court overruled Nguyen's objections, but granted him a running objection at trial that incorporated all of the objections. On appeal, Nguyen concedes the evidence was relevant because he was charged with “engaging in organized criminal activity,” but asserts its probative value was substantially outweighed by unfair prejudice. See Tex. R. Evid. 403. This argument, however, was specifically rejected by the Texas Court of Criminal Appeals in Vasquez v. State, 67 S.W.3d 229, 240 (Tex. Crim. App. 2002). Accordingly, we resolve Nguyen's sixth issue against him.
Reasonable Doubt Instruction
        Nguyen's seventh issue stems from the trial court's denial of his request for a jury instruction on the definition of reasonable doubt. In arguing this issue, Nguyen acknowledges the court of criminal appeals in Paulson v. State, 28 S.W.3d 570, 573 (Tex. Crim. App. 2000) held that the reasonable doubt instruction is no longer required at the guilt-innocence stage of trial and that the “better practice” is not to give the instruction at all. Nonetheless, he urges the trial court erred and Paulson should be overruled. Of course, we are bound by the decisions of the court of criminal appeals and lack the authority to overrule them. State v. Delay, 208 S.W.3d 603, 607 (Tex. App.-Austin 2006), aff'd sub nom., State v. Colyandro, 233 S.W.3d 870 (Tex. Crim. App. 2007); Ex parte Williams, 200 S.W.3d 819, 823 (Tex. App.-Beaumont 2006, no pet.). Because the reasonable doubt definition is disfavored at the guilt-innocence stage of trial, the trial court did not err in failing to give such an instruction. We resolve Nguyen's seventh issue against him.
Sufficiency of the Evidence to Prove Allegations in First Enhancement Paragraph
        In his fourth and fifth issues, Nguyen asserts the evidence is legally insufficient to support the first of two enhancement paragraphs. Specifically, in his fourth issue, he contends the evidence is insufficient because the State offered “defective” proof of the conviction alleged in that paragraph-a burglary conviction in California-and in his fifth issue he contends the evidence is insufficient because the burglary conviction had not become final prior to the commission of the offense at hand.
        Generally, the offense of engaging in organized criminal activity by committing murder is a first degree felony subject to a minimum five years' imprisonment. See Tex. Penal Code Ann. §§ 12.32 (Vernon 2003), 19.02(c), 71.02(b). The State, however, sought to enhance Nguyen's punishment to habitual status through two enhancement paragraphs that alleged that
 
prior to the commission of the [offense of engaging in organized criminal activity Nguyen] was convicted of a felony offense of Burglary, on the 19th of July 2000, A.D., in Cause Number KA02-966-0 on the docket of the East District Court; Department F of Los Angeles County, California under the name of Huan Huu Nguyen and said conviction was a final conviction,
 
 
 
and . . . prior to the commission of the aforesaid offense, [Nguyen] was convicted of a felony offense of Theft over $750 but under $20,000, on the 15th of August 1994, A.D., in Cause Number 219-805-87-94 on the docket of the 219th District Court, of Collin County, Texas under the name of Huan Huu Nguyen and said conviction was a final conviction.
 
Nguyen pleaded “not True” to these paragraphs,   See Footnote 5  leaving the State with the burden of proving them. See Mikel v. State, 167 S.W.3d 556, 559 (Tex. App.-Houston [14th Dist.] 2005, no pet.). To satisfy its burden, the State had to prove beyond a reasonable doubt that Nguyen had been finally convicted of the two felony offenses prior to the commission of the offense at hand and that the second previous felony conviction was for an offense that occurred subsequent to the first previous conviction having become final. Tex. Penal Code Ann. § 12.42(d) (Vernon Supp. 2008); Magic v. State, 217 S.W.2d 66, 70 (Tex. App.-Houston [1st Dist.] 2006, no pet.). To establish Nguyen was convicted of the prior offenses, the State had to prove beyond a reasonable doubt the existence of the prior conviction and that Nguyen was the defendant in that prior conviction. Flowers v. State, 220 S.W.3d 919, 921 (Tex. Crim. App. 2007).
        Applying the law to the facts at hand, we agree with Nguyen that the evidence is legally insufficient to support the allegations in the first paragraph because the burglary conviction alleged in that paragraph did not become final prior to Luong's murder. As proof of the conviction, the State offered a packet containing a “minute order” from the Superior Court of California, an abstract of judgment bearing a seal and clerk's signature, a fingerprint from the arraignment, the information, and a guilty plea signed by Nguyen. These documents reflect Nguyen committed the burglary in 1995, was convicted in July 2000, and was sentenced to four years' imprisonment. Luong was murdered July 16, 1998. On their face, then, these records show that the burglary conviction had not become final prior to the commission of the offense at hand and no rational juror could have found the allegations in the first paragraph true beyond a reasonable doubt. See Mikel, 167 S.W.3d at 558- 60 (concluding evidence legally insufficient to support allegations in second enhancement paragraph because alleged prior conviction did not become final prior to commission of alleged prior conviction in first enhancement paragraph); Sanders v. State, 785 S.W.2d 445, 448 (Tex. App.-San Antonio 1990, no pet.) (setting aside sentence after concluding trial court improperly enhanced punishment with prior conviction that was not final prior to commission of primary offense). We sustain Nguyen's fifth issue, reverse the sentence, and remand for a new punishment hearing. See Magic, 217 S.W.3d at 74; Mikel, 167 S.W.3d at 560. Our disposition of this issue makes it unnecessary to address Nguyen's fourth issue. Tex. R. App. P. 47.4.
        We affirm appellant's conviction but reverse the sentence and remand for a new punishment hearing.
 
                                                          
                                                          MARTIN RICHTER
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
060403F.U05
 
Footnote 1          Nghia and Nguyen are unrelated.
Footnote 2          It is unclear from the record if any of the assailants were related to each other or if Nghia was related to any of the other assailants.
Footnote 3          Nguyen did not testify.
Footnote 4          Neither the indictment nor the jury charge included the “with the intent” language, instead referencing only whether Nguyen committed the murder “as a member of a criminal street gang.” In his third issue, Nguyen complains of that omission and in disposing of that issue, we assume without deciding that the omission was error. For purposes of our evaluation of the sufficiency of the evidence and because the result is the same, we will likewise assume the mental state language was required. Compare Curiel v. State, 243 S.W.3d 10, 16 (Tex. App.-Houston [1st Dist.] 2007, pet. ref'd) (specifically concluding offense of engaging in organized criminal activity requires mental state of intent to “establish, maintain, or participate . . . as criminal street gang member”) with Chaddock v. State, 203 S.W.3d 916, 920 (Tex. App.-Dallas 2006, no pet.) (analyzing legal sufficiency of evidence to support conviction for engaging in organized criminal activity by considering simply whether appellant committed underlying offense “as a member” of a criminal street gang without specifically considering appellant's intent to participate as a gang member).
Footnote 5          We note the judgment incorrectly reflects Nguyen pleaded true to the enhancement paragraphs. We also note the judgment fails to include a deadly weapon finding, even though the indictment alleged Nguyen used a deadly weapon during the commission of the offense and the jury found him guilty of the offense as alleged in the indictment. However, in view of our disposition of the case, we do not modify the judgment to correct the errors.