                                                                                                                                          ACCEPTED
                                                                                                                                     01-14-00722-CR
                                                                                                                           FIRST COURT OF APPEALS
                                                                                                                                   HOUSTON, TEXAS
                                                                                                                               3/30/2015 12:00:00 AM
                                                                                                                                 CHRISTOPHER PRINE
                                                                                                                                              CLERK

                                                 NO. 01-14-00722-CR

                                            IN THE COURT OF APPEALS                                        FILED IN
                                                                                                    1st COURT OF APPEALS
                                                                                                        HOUSTON, TEXAS
                                  FOR FIRST SUPREME JUDICIAL DISTRICT                               3/30/2015 11:19:00 AM
                                                                                                    CHRISTOPHER A. PRINE
                                                                                                             Clerk
                                                    HOUSTON, TEXAS
....................................................................................................................................
THANH KIM HOANG                                              *         APPELLANT

VS.                                                          *

THE STATE OF TEXAS                                           *         APPELLEE
....................................................................................................................................
                                             TRIAL COURT NO. 1384675

                                 IN THE 209TH JUDICIAL DISTRICT COURT

                                            OF HARRIS COUNTY, TEXAS
....................................................................................................................................
                                                BRIEF FOR APPELLANT
....................................................................................................................................
                                                                       Charles Hinton
                                                                       P.O. Box 53719
                                                                       Houston, Texas 77052-3719
                                                                       chashinton@sbcglobal.net
                                                                       SBOT #09709800
                                                                       Attorney for Appellant
                              TABLE OF CONTENTS

                                                         Page:

Identity of Parties and Counsel                          i

List of Authorities                                      ii, iii

Statement of the Case                                    1

Point for Review Number One                              1

      APPELLANT SUFFERED EGREGIOUS HARM AS A RESULT OF
      THE TRIAL COURT'S UNOBJECTED TO BUT ERRONEOUS
      JURY CHARGE INSTRUCTION THAT MISINFORMED THE JURY
      AS TO WHICH SPECIFIC OFFENSE THE STATE HAD TO PROVE
      APPELLANT ACTED WITH THE INTENT TO PROMOTE OR ASSIST
      THE COMMISSION OF BEFORE HE COULD BE FOUND CRIMIN-
      ALLY RESPONSIBLE AS A PARTY TO THE CHARGED OFFENSE
      OF CAPITAL MURDER PURSUANT TO TEX. PENAL CODE SEC.
      7.02(a)(2) (CR: I: 101).

Statement of the Facts                                   1

Summary of the Argument                                  6

Argument                                                 8

Prayer for Relief                                        22

Certificate of Compliance                                23

Certificate of Service                                   23
                      IDENTITY OF PARTIES AND COUNSEL

Judge                             Honorable Wayne Mallia

Complainant                       Mr. Tuan Tu

Trial Prosecutors                 Mr. Nathan Moss
                                  SBOT #24051091

                                  Mr. David Bernard
                                  SBOT #24076272

Defense Counsel                   Mr. Kurt B. Wentz
                                  SBOT #21179300

Appellant                         Mr. Thanh Kim Hoang

Appellant's Counsel               Mr. Charles Hinton
                                  SBOT #09709800

Appellee's Counsel:               Mss. Devon Anderson
                                  District Attorney




                                     i
                              LIST OF AUTHORITIES

Cases:                                                       Page:

Almanza v. State,
686 S.W.2d 157 (Tex. Crim. App. 1985, op. on reh'g)          16

Delgado v. State,
235 S.W.3d 244 (Tex. Crim. App. 2007)                        14

Gray v. State,
152 S.W.3d 125 (Tex. Crim. App. 2004)                        16

Green v. State,
233 S.W.3d 72 (Tex. App. -- Houston [14th Dist.] 2007)       21

Guevara v. State,
191 S.W.3d 203 (Tex. App. -- San Antonio 2005, PDRR)         15

Plata v. State,
926 S.W.2d 300 (Tex. Crim. App. 1996)                        14

Ransom v. State,
920 S.W.2d 288 (Tex. Crim. App. 1994)                        13

Robinson v. State,
266 S.W.3d 8 (Tex. App. -- Houston [1st Dist.] 2008, PDRR)   22

Stephens v. State,
717 S.W.2d 338 (Tex. Crim. App. 1986)                        13

Vega v. State,
394 S.W.3d 514 (Tex. Crim. App. 2013)                        14


                                        ii
                          LIST OF AUTHORITIES (cont'd)

Cases:                                                   Page:

Wooden v. State,
101 S.W.3d 542 (Tex. App. -- Fort Worth 2003, PDRR)      13

Statutes:

Tex. Penal Code sec. 7.01(a)                             6, 9, 22

Tex. Penal Code sec. 7.02(a)(2)                          1, 7-19, 21,
                                                         22

Tex. Penal Code sec. 7.02(b)                             7, 9, 22

Tex. Penal Code sec. 19.02                               8

Tex. Penal Code sec. 19.03(a)(2)                         8, 10




                                       iii
TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS

FOR THE FIRST SUPREME JUDICIAL DISTRICT:

      Comes now, appellant Thanh Kim Hoang, and submits this brief pursuant to

TEX. R. APP. PROC. 38.1.

                            STATEMENT OF THE CASE

      On August 21, 2014, a jury found appellant guilty of capital murder and the

trial court assessed punishment at life in prison. Appellant gave timely notice of

appeal (RR 5: 37, 40).

                         POINT FOR REVIEW NUMBER ONE

      APPELLANT SUFFERED EGREGIOUS HARM AS A RESULT OF THE
      TRIAL COURT'S UNOBJECTED TO BUT ERRONEOUS JURY CHARGE
      INSTRUCTION THAT MISINFORMED THE JURY AS TO WHICH
      SPECIFIC OFFENSE THE STATE HAD TO PROVE APPELLANT ACTED
      WITH THE INTENT TO PROMOTE OR ASSIST THE COMMISSION OF
      BEFORE HE COULD BE FOUND CRIMINALLY RESPONSIBLE AS A
      PARTY TO THE CHARGED OFFENSE OF CAPITAL MURDER PUR-
      SUANT TO TEX. PENAL CODE SEC. 7.02(a)(2) (CR 1: 101).

                           STATEMENT OF THE FACTS

      Harris County Sheriff Officer Brandon Kizzee, while working patrol on

February 8, 2013, responded to a call at 8244 Antoine Drive, the Cafe Chieu (RR 3:

22-24, 26). Upon entering, he observed a male face down in a puddle of blood

                                        1
next to a pool table (RR 3: 27). He observed the barrel of a handgun underneath

the male's body (RR 3: 28). He noticed bullet holes in the wall and several shell

casings on the floor (RR 3: 29).

      Crime Scene Investigator Officer Gary Pedoto made the homicide scene. He

observed Officer Ortiz collect glasses and cigarette butts from the cafe (RR 3: 37-

39). A pair of sunglasses were found which contained Mr. Vu Bui's fingerprint (RR

3: 41, 105).

      Sergeant investigator James Dousay of the Homicide Division took buccal

swabs from appellant and turned them into the Harris County Medical Examiner's

Office (RR 3: 49-50, 54).

       Sergeant Francisco Garcia of the Homicide Division (RR 3: 57) saw

numerous fired cartridges at the scene. He also saw the deceased complainant's

revolver (RR 3: 66). There were 5 fired cartridges in the revolver (RR 3: 67). He

found video surveillance and located witnesses. A cell phone left by the shooter

suspect Mr. Vu Bui was found and swabbed for DNA (RR 3: 69-70, 100).

      Witnesses Johnny Le and Nghiep Le picked Mr. Vu Bui out of a photo array

and indicated that he was the person who shot the complaining witness (RR 3: 77-

78, 104). However, Mr. Bui was never found (RR 3: 78). A photo array containing

                                        2
appellant's photo was created. Mr. Nghiep made a "strong tentative"

identification of the appellant (RR 3: 83). Mr. Johnny Le was unable to identify

anyone in the photo array. A buccal swab was obtained from appellant and

charges were filed against him (RR 3: 85).

      The ballistics evidence collected from the game room was turned over to

the lab (RR 3: 99).

       There was a plaza mall on Antoine nearby to where Lawrence Ontiveros

lived at 8603 Enchanted Forest (RR 3: 112). He saw 2 Asian men, running away

from the mall, jump into what looked like a brown Toyota Camry (RR 3: 114, 117-

118). About 10 minutes later, he heard police sirens and, subsequently, a lot of

police officers arrived in the area (RR 3: 118). He didn't see any blood droplets in

the street or on the sidewalk where the men had been running (RR 3: 120).

      On February 8, 2013, Mr. Johnny Le was in the store playing pool. His

brother and the store owner were there also (RR 3: 123). Prior to testifying, he

had been given the opportunity to view the surveillance video from the store (RR

3: 123). In the video he saw himself, his brother and the store owner. He and his

brother played pool for about 35 minutes.

      Two men entered the store, the first one wearing a jacket and glasses; the

                                         3
second one was wearing a hat and glasses (RR 3: 125). They spoke to the owner

(RR 3: 126). They were there 15 minutes (RR 3: 127). Then they stood up as if to

leave walking towards the exit (RR 3: 129). The shooter took out a gun, tapped

Johnny Lee on the shoulder, and ordered him to kneel down (RR 3: 130). Then he

told everybody to lay down. The second man, the non-shooter, came up behind

Johnny Le (RR 3: 131). The second man never pointed a gun at Johnny Le. The

second man also told Johnny Le to lay down (RR 3: 132). While kneeling down,

Johnny Le heard the shooting (RR 3: 133). The gunman and the owner started to

shoot each other (RR 3: 135). The cafe owner, Mr. Tu, pulled his gun in response

to the other man having his gun out (RR 3: 136). Mr. Tu collapsed as he was

running towards the entrance and he did not get back up. Blood was coming from

his abdomen. Johnny Le's brother called 911. Johnny Le gave a statement to the

police (RR 3: 137-138). Mr. Johnny Lee never saw the non-shooter short man

direct the tall man to do anything. Mr. Johnny Lee saw the short man run out of

the cafe first and then the tall man ran out about 20 seconds later (RR 3: 146-

147).

        Mr. Nghiep Le and his brother went to shoot pool at a coffee shop on



                                         4
February 8, 2013 (RR 4: 13). Mr. Nghiep Le, his brother Johnny Le, and the owner

were the only ones present when 2 men entered (RR 4: 15-16). Guns were

drawn, shots fired, and the owner died (RR 4: 14). No one else entered the cafe

between the time the two men entered and the shooting occurred (RR 4: 16). The

defendant's friend, not the defendant, took out a gun and told everybody to kneel

down (RR 4: 17). After the man with the gun ran out, Mr. Nghiep Le called 911.

The owner, Mr. Tu, was lying on the floor (RR 4: 21). Mr. Nghiep Le gave a

statement to the police (RR 4: 22). Mr. Nghiep Le identified the appellant as the

man without the gun (RR 4: 26). The tall man with the gun came back to Mr.

Nghiep Le's brother and told everyone to kneel down (RR 4: 30). During the

shooting, Mr. Nghiep Le was kneeling down. During the shooting, there was no

way he could see what was going on (RR 4: 33).

       Assistant Medical Examiner, Dr. Michael Condron performed the autopsy

on the complainant Tuan Tu on February 9, 2013 (RR 4: 37). The cause of death

was 2 gunshot wounds of the torso. The manner of death was homicide (RR 4:

52).

       DNA analyst Tammy Taylor did the analysis of item 6 (the glass), item 3 (the

cigarette butt), and item 70 ( K2, the known sample of DNA) (RR 4: 66). State's

                                         5
exhibit #56 is the report she generated (RR 4: 67). She concluded that K2 cannot

be excluded as a possible major contributor to the DNA mixtures on items 3-1 and

6A-1 which were basically sub-items of Items 3 and 6 (RR 4: 68).

      Quoc Nguyen was the spouse of the deceased complainant Tuan Tu. They

had been married 15 and 1/2 years. There had 2 children (RR 4: 80).

      HCSO Crime Scene Unit Deputy Raymond Campos made a call at the crime

scene at 8244 Antoine on February 8, 2013 (RR 4: 83-84). He was assigned to take

measurements of evidence including bullets striking walls (RR 4: 85-86). Neither

the projectiles that struck the south wall nor the projectiles that struck the north

wall were a tightly grouped set of shots (RR 4: 94). There were eight 9-millimeter

casings found at the scene. The revolver found at the scene was a .38 caliber (RR

4: 95). Casings do not eject from a revolver; casings eject from a semiautomatic

(RR 4: 96).

                         SUMMARY OF THE ARGUMENT

      A person is criminally responsible as a party to an offense if the offense is

committed by his own conduct, by the conduct of another for which he is

criminally responsible, or by both. TEX. PENAL CODE, sec. 7.01(a).



                                         6
       The evidence clearly showed, as the state's prosecutor Mr. Moss conceded,

(RR 5:5) that appellant was not the shooter and that Mr. Vu Bui shot and killed

the complainant Mr. Tuan Tu. Therefore, although the trial court's charge did

contain a theory of criminal responsibility as a party to the offense of capital

murder based upon appellant's own conduct, the state relied exclusively on two

alternative theories of criminal responsibility as set out in TEX. PENAL CODE, sec.

7.02(a)(2) and 7.02(b).

       Appellant contends that the jury charge contained an application paragraph

which erroneously instructed the jury that, pursuant to sec. 7.02(a)(2), "Before

you would be warranted in finding the defendant guilty of capital murder, ... you

must find from the evidence beyond a reasonable doubt that the defendant,

Thanh Kim Hoang, with the intent to promote or assist in the commission of the

offense of robbery, if any, solicited, encouraged, directed, aided, or attempted to

aid Vu Bui in shooting Tuan Tu, if he did, with the intention of thereby killing Tuan

Tu .... (CR I: 101)."

       In order for the jury to find appellant guilty pursuant to sec. 7.02(a)(2), the

jury would have to find from the evidence beyond a reasonable doubt that the

defendant, Thanh Kim Hoang, acted with the intent to promote or assist the

                                          7
commission of the offense of capital murder not robbery. In addition, the jury

would have to find beyond a reasonable doubt that the defendant, Thank Kim

Hoang, solicited, encouraged, directed, aided, or attempted to aid Vu Bui to

commit the offense of capital murder.

      The trial court's erroneous jury instruction resulted in egregious harm to

the appellant by allowing the jury to find appellant guilty pursuant to sec.

7.02(a)(2) without the required beyond a reasonable doubt finding that he had

the intent to promote or assist in the commission of the offense of capital

murder.

                                  ARGUMENT

      Appellant was charged with capital murder pursuant to TEX. PENAL CODE

sec. 19.03(a)(2) which states that "A person commits an offense if the person

commits murder as defined under Section 19.02(b)(1) and: ... the person

intentionally commits the murder in the course of committing or attempting to

commit ... robbery ...."

      In pertinent part the indictment read as follows: "that in Harris County,

Texas, THANH KIM HOANG, hereafter styled the defendant, heretofore on or

about February 8, 2013, did then and there unlawfully, while in the course of

                                        8
committing and attempting to commit the ROBBERY of TUAN TU, intentionally

cause the death of TUAN TU by SHOOTING THE COMPLAINANT WITH A DEADLY

WEAPON, NAMELY A FIREARM (CR I: 11).

      A person is criminally responsible as a party to an offense if the offense is

committed by his own conduct, by the conduct of another for which he is

criminally responsible, or by both. TEX. PENAL CODE, sec. 7.01(a).

      The surveillance video evidence (State's Exhibit #43 at RR 6: 42) clearly

showed as the prosecutor Mr. Moss candidly pointed out to the jury that

appellant was not the shooter (RR 5: 5). Therefore, appellant could not legally be

found criminally responsible as a party to the offense of capital murder on the

theory that the offense of capital murder was committed by his own conduct. The

state, through Mr. Moss, relied on two alternative theories of criminal

responsibility as set out in TEX. PENAL CODE, sec. 7.02(a)(2) and sec. 7.02(b).

      Pursuant to sec. 7.02(a)(2), a person is criminally responsible for an offense

committed by the conduct of another if:

      acting with intent to promote or assist the commission of the offense, he

solicits, encourages, directs, aids or attempts to aid the other person to commit

the offense.

                                          9
      The "offense" that was committed by Vu Bui was capital murder. Simply

stated, the "offense" of capital murder in this case consisted of the attempted or

actual commission of the underlying offense of robbery plus murder while in the

course thereof. Sec. 19.03(a)(2). Party liability pursuant to the plain language of

sec. 7.02(a)(2) required the appellant Thank Kim Hoang to have acted with the

intent to promote or assist the commission of the offense of capital murder. Party

liability pursuant to the plain language of sec. 7.02(a)(2), in addition, required the

appellant, Thanh Kim Hoang, to have solicited, encouraged, directed, aided or

attempted to aid the other person, namely Vu Bui, to commit the offense of

capital murder.

      Therefore, in order for the jury to find appellant Thanh Kim Hoang guilty

and criminally responsible for the offense of capital murder committed by the

conduct of Vu Bui, the jury would have to find beyond a reasonable doubt that

the appellant, Thanh Kim Hoang, acting with the intent to promote or assist the

commission of the offense of capital murder, solicited, encouraged, directed,

aided, or attempted to aid Vu Bui to commit the offense of capital murder. Sec.

7.02(a)(2).

      Concerning the application of the TEX. PENAL CODE sec. 7.02(a)(2) type of

                                         10
criminal responsibility for the offense of capital murder committed by the

conduct of another, namely Vu Bui, the trial court instructed the jury, in pertinent

part, as follows:

      "Before you would be warranted in finding the defendant guilty of capital

murder ... you must find from the evidence beyond a reasonable doubt that the

defendant, Thanh Kim Hoang, with the intent to promote or assist in the

commission of the offense of robbery (italics added for emphasis), if any, solicited,

encouraged, directed, aided, or attempted to aid Vu Bui in shooting Tuan Tu, if he

did, with the intention of thereby killing Tuan Tu ... (CR I: 101)."

      The above italicized phrase "with the intent to promote or assist in the

commission of the offense of robbery" is clearly incorrect. The language "with the

intent to promote or assist in the commission of the offense" obviously comes

directly from sec. 7.02(a)(2). The sec. 7.02(a)(2) phraseology is used in

situations where one person, such as Vu Bui, in the instant case, by his own

conduct commits an offense, such as capital murder, and there is evidence in the

record to support a theory of criminal responsibility whereby a person different

from Vu Bui, such as the appellant, Thanh Kim Hoang, could be found guilty of

capital murder by being held criminally responsible for the conduct of another,

                                          11
namely Vu Bui.

       The word "offense" is used twice in sec. 7.02(a)(2). In the first instance, the

statute requires that the person, in order to be found criminally responsible for

the conduct of another, act with intent to promote or assist the commission of

the offense. And that offense has to be the same offense that was committed by

the conduct of another. Therefore, in appellant's case, that offense would have to

be capital murder and not robbery. In the second instance of the use of the word

offense in sec. 7.02(a)(2) it is further required that the person, in order to be

found criminally responsible for the conduct of another, solicit, encourage, direct,

aid, or attempt to aid the other person to commit the offense. Once again, in

appellant's case, that offense would have to be capital murder.

       In Wooden v. State, 101 S.W.3d 542 (Tex. App. -- Fort Worth 2003, PDRR),

the appellant was convicted as a party to an aggravated robbery. The Court of

Appeals pointed out that "Section 7.02(a)(2) of the penal code provides that a

person is criminally responsible for another person's conduct if 'acting with intent

to promote or assist the commission of the offense, he solicits, encourages,

directs, aids, or attempts to aid the other person to commit the offense' " Id. at

546.

                                         12
      The Fort Worth Court of Appeals further stated that "Rule 7.02(a)(2) of the

penal code requires that a party to an offense intend to promote or assist 'the

offense'. Therefore, the State was required to prove that appellant intended to

promote or assist an aggravated robbery and that he solicited, encouraged,

directed, aided, or attempted to aid in the commission of an aggravated robbery.

Id. at 547."

      In Stephens v. State, 717 S.W.2d 338, 340 (Tex. Crim. App. 1986), the Court

of Criminal Appeals declared that "In the instant case, however, the jury had been

charged to convict appellant only if it found that acting with the intent to

promote or assist the commission of the offense, he solicited, encouraged,

directed, aided, or attempted to aid in the another person to commit the offense.

"The offense" in this case was aggravated rape."

      In Ransom v. State, 920 S.W.2d 288, 302 (Tex. Crim. App. 1994), the

appellant was convicted of capital murder, the Court of Criminal Appeals

approved of the parties charge given on the guilt/innocence phase of the trial

which read in pertinent part "and that the Defendant, acting with the intent to

promote or assist the commission of the offense of capital murder committed by

Isaac Johnson, or Nathan Clark, or Bryan Williams, solicited, encouraged, directed,

                                        13
aided, or attempted to aid the said Isaac Johnson, or Nathan Clark, or Bryan

Williams to commit the said offense, if any, then you will find the Defendant guilty

of capital murder charged in the indictment."

      In Vega v. State, 394 S.W.3d 514, 518 (Tex. Crim. App. 2013), the Texas

Court of Criminal Appeals, citing Delgado v. State, 235 S.W.3d 244, 249 (Tex.

Crim. App. 2007), pointed out that:

      "The trial judge is 'ultimately responsible for the accuracy of the jury

      charge and accompanying instructions.' Article 36.14 states that 'the

      judge shall, before the argument begins, deliver to the jury, except

      in pleas of guilty, where a jury has been waived, a written charge

      distinctly setting forth the law applicable to the case.' The trial judge

      has the duty to instruct the jury on the law applicable to the case even

      if defense counsel fails to object to inclusions or exclusions in the

      charge."

      In Plata v. State, 926 S.W.2d 300, 304 (Tex. Crim. App. 1996), The Texas

Court of Criminal Appeals stated:

      "For many years we have uniformly insisted that the State may not support

a jury verdict of guilty upon the theory that an accused was criminally responsible

                                         14
for an offense committed by the conduct of another person unless the court's

charge specifically and adequately authorizes the jury to convict the accused upon

that theory. As in other contexts, a charge is adequate for this purpose only if it

either contains an application paragraph specifying all of the conditions to be met

before a conviction under such theory is authorized, or contains an application

paragraph authorizing a conviction under conditions specified by other

paragraphs of the jury charge to which the application paragraph necessarily and

unambiguously refers, or contains some logically consistent combination of such

paragraphs."

      In instructing the jury on the application paragraph of the TEX. PENAL CODE

sec. 7.02(a)(2) theory of party liability, the trial court erred in informing the jury

that a guilty verdict of capital murder would require that the jury find beyond a

reasonable doubt that appellant had "the intent to promote or assist in the

commission of the offense of robbery ... (CR I: 101)" instead of the intent to

promote or assist in the commission of capital murder.

      A trial court must fully instruct the jury on the law applicable to the case

and apply that law to the facts adduced at trial. Guevara v. State, 191 S.W.3d 203,

206 (Tex. App. -- San Antonio, 2005, PDRR 2006). This is because the jury must

                                         15
be instructed under what circumstances they should convict, or under what

circumstances they should acquit. Gray v. State, 152 S.W.3d 125, 127-128 (Tex.

Crim. App. 2004). Jury charges which fail to apply the law to the facts adduced at

trial are erroneous. Id., at 128.

      The trial court's erroneous instruction concerning party liability, pursuant

to sec. 7.02(a)(2), id., allowed the jury to find appellant guilty of capital murder

based upon an invalid legal theory that the jury only had to find beyond a

reasonable doubt that appellant acted "with the intent to promote or assist the

commission of the offense of 'robbery' ". The word "offense" as it appears in the

statutory language of sec. 7.02(a)(2) and as it should have been applied to

appellant's case could only have the meaning of "capital murder" since capital

murder was the "offense" which Vu Bui committed and the state was using the

language of sec. 7.02(a)(2) to hold the appellant Thanh Kim Hoang criminally

responsible as a party to the offense of capital murder that Vu Bui committed.

      Appellant did not object to the error on the jury charge at trial. If error was

not objected to, it must be "fundamental" and requires reversal only if it was so

egregious and created such harm that the defendant "has not had a fair and

impartial trial.' " Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985, op.

                                        16
on reh'g).

      In determining whether appellant was egregiously harmed by the

erroneous jury instruction, this Court should examine the following four factors:

(1) the entire jury charge; (2) the state of the evidence, including contested issues

and the weight of the probative evidence; (3) the parties' arguments; and (4) all

other relevant information in the record. Id., at 171.

      1. The Entire Jury Charge

      This factor weighs in favor of finding egregious harm because the

erroneous TEX. PENAL CODE sec. 7.02(a)(2) party liability instruction permitted

the jury to return a guilty verdict based upon a invalid theory of criminal

responsibility, i.e., by stating that the jury was required to find that appellant had

the intent to promote or assist in the commission of the offense of robbery

instead of the offense of capital murder (CR I: 101). The erroneous declaration

that the offense for which the appellant had the intent to promote or assist was

robbery not only contravened the specific statutory language of sec. 7.02(a)(2),

but also improperly allowed the jury to base a guilty verdict of capital murder on

less than the proof required to show that appellant was criminally responsible for

the offense of capital murder which was committed by the conduct of Vu Bui.

                                         17
         2. The State of the Evidence

         The state of the evidence was such that appellant could not have been

found guilty as a party to capital murder based on his own conduct since he did

not shoot the complainant (See State's Exhibit #43 at RR: 6: 42). Vu Bui shot and

killed the complainant. The state's prosecutor, Mr. Nathan Moss, conceded that

appellant could not be convicted of capital murder based on his own conduct (RR

5: 5).


         Appellant contends that the fact that appellant could not have been found

guilty of capital murder based on his own conduct combined with the state's

seeking that the jury convict appellant for being criminally responsible for the

conduct of Vu Bui in the commission of capital murder pursuant to TEX. PENAL

CODE sec. 7.02(a)(2) weighs in favor of finding egregious harm from the

erroneous instruction which allowed the jury to find appellant criminally

responsible as a party to the offense of capital murder committed by Vu Bui

without having to find that appellant acted with the intent to promote or assist in

the commission of the capital murder (CR I: 101).


         3. The Parties' Argument


                                         18
       The prosecutor, Mr. Moss, told the jury that appellant was not the shooter

and that the case was about party and co-conspirator liability. The significance of

the erroneous party liability instruction was that instead of having to find beyond

a reasonable doubt that the appellant had to have been acting with the intent to

promote or assist in the commission of the offense of capital murder as the

statutory language of sec. 7.02(a)(2) required, the jury was told that they only had

to find beyond a reasonable doubt that the appellant, Thanh Kim Hoang, acted

"with the intent to promote or assist in the commission of the offense of robbery

... (CR I: 101)"


       Also, the erroneous sec. 7.02(a)(2) instruction would have improperly

impeded the jury's ability to consider the lesser included offense of felony

murder. The jury was instructed that they were to consider the lesser included

offense of felony murder only if they had a reasonable doubt or were unable to

agree that appellant was guilty of capital murder (CR I: 103). Appellant contends

that the erroneous sec. 7.02(a)(2) instruction made it much easier for the jury to

agree that appellant was guilty of capital murder since they would not be

required to find that he acted with the intent to promote or assist the commission


                                        19
of capital murder (CR I: 101). The 3rd factor contributed to the egregious harm


resulting from the erroneous instruction.


      4. Other Relevant Evidence In The Record


      There is evidence in the record to support a theory that the appellant did

not act with the intent to promote or assist in the commission of the offense of

capital murder of the specific complainant Tuan Tu as alleged in the indictment

(CR I: 11). States witness Johnny Le testified that, when the shooting started, the

shorter man, the man without the gun, didn't do anything. (RR 3: 145). Witness Le

believed the short man was the first to run out of the store after the shooting

started. Witness Le never saw the short man direct the tall man to do anything

(RR 3: 146).


      Witness Nghiep Le couldn't see after the shooting started because he was

under the table (RR 4: 32).


      However, the erroneous jury instruction stating that the jury only had to

find beyond a reasonable doubt that the appellant had the intent to promote or

assist the offense or robbery instead of the offense of capital murder fatally


                                         20
impeded the jury's consideration of evidence, which, if believed, could have

prevented him from being found guilty, as a party, pursuant to sec. 7.02(a)(2). The

4th factor also added to the egregiousness of the harm caused appellant.


       Under an egregious harm standard, the erroneous jury instruction error

warrants reversal. "[T]he jury was told in the application paragraphs in the charge

that it could convict appellant on an invalid legal theory .... we can tell that

neither the rest of the charge, nor the evidence, nor the jury arguments set the

record right and that the jury was affirmatively told it must follow the law given it

in the charge." Green v. State, 233 S.W.3d 72, 83-84 (Tex. App. -- Houston [14th

Dist.] 2007).


      Appellant was denied a fair and impartial trial due to the jury being

authorized to find him criminally responsible for and guilty of the offense of a

capital murder that was committed by another person Vu Bui without requiring

the jury to find beyond a reasonable doubt the essential element that appellant

acted with the intent to promote or assist the commission of the offense of

capital murder as required by sec. 7.02(a)(2). Id., at 85.


      The jury was instructed pursuant to three possible theories of criminal


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responsibility: (1) that appellant was criminally responsible as a party to the

offense of capital murder which was committed by appellant's own conduct; (2)

that appellant was criminally responsible as a party to the offense of capital

murder which was committed by the conduct of Vu Bui; or (3) that appellant was

criminally responsible for the offense of capital murder as part of a conspiracy.

Tex. Penal Code, sec. 7.01(a), 7.02(a)(2), 7.02(b); (CR I: 101-103).


      In a case such as this where it is not possible to tell whether appellant was

convicted on an erroneous theory of criminal responsibility or on a valid theory of

liability, the jury charge affected the very basis of the case and denied appellant a

valuable right. Appellant was egregiously harmed. Robinson v. State, 266 S.W.3d

8, 15 (Tex. App. -- Houston [1st Dist.] 2008, PDRR 2009).


                                PRAYER FOR RELIEF


        Appellant prays that this Court reverse the judgment of the court below

    and remand the case for further proceedings. TEX. R. APP. PROC. 43.2(d).


                                               Respectfully submitted,




                                          22
                                             /s/Charles Hinton_______________
                                             Charles Hinton
                                             P.O. Box 53719
                                             Houston, Texas 77052-3719
                                             832-603-1330
                                             chashinton@sbcglobal.net
                                             SBOT #09709800
                                             Attorney for Appellant

                          CERTIFICATE OF COMPLIANCE

      I certify that the word count of this document is 5202.


                                             /s/Charles Hinton________________
                                             Charles Hinton

                             CERTIFICATE OF SERVICE

      I certify that a copy of appellant's brief has been electronically served upon

the attorney for the State, Mr. Alan Curry, Assistant District Attorney, 1201

Franklin, Houston, Texas 77002 on March 29, 2015.


                                             /s/Charles Hinton________________
                                             Charles Hinton




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