                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 2-08-421-CR


HIEP D. NGO                                                         APPELLANT

                                        V.

THE STATE OF TEXAS                                                       STATE

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           FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY

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                         MEMORANDUM OPINION 1

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                                 I. INTRODUCTION

      Appellant Hiep D. Ngo appeals his conviction for murder. In two points,

Ngo argues that the evidence is legally and factually insufficient to sustain his

conviction because the witnesses who testified at trial were not credible. We

will affirm.




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          … See Tex. R. App. P. 47.4.
                                II. B ACKGROUND

      On August 10, 2002, Vu Doan was shot in the head and killed in front

of a pool hall located in a strip shopping mall. Prior to the shooting, the pool

hall, which had been “completely packed,” began to clear out as the majority

of the customers left. Michael Sengvilay, who was sixteen years old on the

night of the shooting, had gone to the pool hall with a couple of friends,

including Doan, to “waste some time” before attending a concert at a nearby

club. Sengvilay entered the pool hall and saw Ngo, whom he knew although

they were not friends. He noticed that Ngo had a black eye. Sengvilay then

exited the club and began talking and “horse playing” in front of the pool hall

with Doan and their other companions. While in the parking lot, he heard Ngo

and another man start to argue and then saw Ngo fire a pistol in the air several

times while screaming. Bystanders outside of the pool hall began to scatter as

Ngo lowered the pistol and started to fire into the crowd. Sengvilay and Doan

ran towards the parking lot, but Doan apparently turned back toward the pool

hall. Sengvilay crouched behind a car looking for his friend. He watched Ngo

drive off with another man. As he surveyed the parking lot, he saw Doan on

the ground with a gunshot wound in the head.

      At trial, Lana Vo, the manager of the pool hall, testified that Ngo was a

customer and that on the night of the shooting Ngo was at the pool hall and

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had a black eye. She testified that the shooting had occurred outside of the

pool hall and that she was given two descriptions of the shooter by people

fleeing into the pool hall. One person stated that the shooter had a black eye,

and the other reported that the shooter was a “short and bulky guy.” When

she heard these descriptions, Vo “thought of” Ngo because he matched the

description of the shooter.

      Julie Ly, who was nineteen years old at the time of the shooting, testified

that she personally knew Ngo. She explained that she was sitting in her car in

the parking lot in front of the pool hall waiting for a friend and saw a crowd

emerge from the pool hall and mill around in front of the entrance. She saw

Ngo approach a nearby car but then lost sight of him. Ly heard a shout and

then saw Ngo fire a pistol first into the air, then into the crowd in front of him.

Ly saw Doan get shot.

      Han Doa testified that she has known Ngo for three years. She stated

that she went to the pool hall on the evening of the shooting to meet her

boyfriend Tinh Nguyen. Inside the pool hall, she saw Nguyen with Ngo. Doa

left the pool hall to speak with a friend in the parking lot. She was standing

next to Nguyen’s car when Nguyen and Ngo walked up and opened the trunk

of the car. She saw Ngo take an object out of the trunk and walk toward the

crowd that had gathered outside of the pool hall. Minutes later, Doa heard

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shots fired, although she could not see the shooter. Ngo and Nguyen then

rushed towards Nguyen’s car, and Nguyen ordered Doa to get into the vehicle

and drive. Four people were present in the car as Doa pulled away: Doa in the

driver’s seat; Nguyen next to her; and Ngo and a woman Doa did not know in

the back seat. Nguyen forced Doa to drive to Houston. Doa testified that

during the drive, Ngo and Nguyen discussed what had occurred and Ngo

admitted to firing the shots in front of the pool hall.

      After the shooting, police talked to Sengvilay, Vo, and Ly. Sengvilay and

Ly told the police that Ngo was the shooter, and Vo told them that she

suspected that Ngo was the shooter.

      By early 2007, Ngo had relocated to Louisiana and had become a “very

good associate[]” of Wesley Lee, a federal felon. Lee testified that Ngo had

told him that he had been “at a club, some type of game room” when he “got

into it with some fools.” Ngo told Lee that he went to his car and “waited for

the fools to come out.” When they exited, “he shot one of them in the head,

killed one of them. And he got in the car, pull[ed] off,” and fled to Houston.

Lee contacted the Tarrant County Sheriff’s Department after Ngo confessed to

him. Lee testified at Ngo’s trial that the prosecutor had agreed to write a letter

on Lee’s behalf seeking a reduction in Lee’s prison sentence if he testified

against Ngo.

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      A unanimous jury convicted Ngo for Doan’s murder, and the trial court

subsequently sentenced him to life imprisonment.

                           III. S TANDARDS OF R EVIEW

A. Legal Sufficiency

      In reviewing the legal sufficiency of the evidence to support a conviction,

we view all of the evidence in the light most favorable to the prosecution in

order to determine whether any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.           Jackson v.

Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Clayton v. State,

235 S.W.3d 772, 778 (Tex. Crim. App. 2007).

      This standard gives full play to the responsibility of the trier of fact to

resolve conflicts in the testimony, to weigh the evidence, and to draw

reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at

319, 99 S. Ct. at 2789; Clayton, 235 S.W.3d at 778. The trier of fact is the

sole judge of the weight and credibility of the evidence. See Tex. Code Crim.

Proc. Ann. art. 38.04 (Vernon 1979); Brown v. State, 270 S.W.3d 564, 568

(Tex. Crim. App. 2008). Thus, when performing a legal sufficiency review, we

may not re-evaluate the weight and credibility of the evidence and substitute

our judgment for that of the factfinder. Dewberry v. State, 4 S.W.3d 735, 740

(Tex. Crim. App. 1999), cert. denied, 529 U.S. 1131 (2000). Instead, we

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“determine whether the necessary inferences are reasonable based upon the

combined and cumulative force of all the evidence when viewed in the light

most favorable to the verdict.” Hooper v. State, 214 S.W.3d 9, 16–17 (Tex.

Crim. App. 2007).        We must presume that the factfinder resolved any

conflicting inferences in favor of the prosecution and defer to that resolution.

Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; Clayton, 235 S.W.3d at 778.

B. Factual Sufficiency

      When reviewing the factual sufficiency of the evidence to support a

conviction, we view all the evidence in a neutral light, favoring neither party.

Neal v. State, 256 S.W.3d 264, 275 (Tex. Crim. App. 2008), cert. denied, 129

S. Ct. 1037 (2009); Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App.

2006). We then ask whether the evidence supporting the conviction, although

legally sufficient, is nevertheless so weak that the factfinder’s determination is

clearly wrong and manifestly unjust or whether conflicting evidence so greatly

outweighs the evidence supporting the conviction that the factfinder’s

determination is manifestly unjust. Lancon v. State, 253 S.W.3d 699, 704

(Tex. Crim. App. 2008); Watson, 204 S.W.3d at 414–15, 417. To reverse

under the second ground, we must determine, with some objective basis in the

record, that the great weight and preponderance of all the evidence, though

legally sufficient, contradicts the verdict. Watson, 204 S.W.3d at 417.

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      In determining whether the evidence is factually insufficient to support a

conviction that is nevertheless supported by legally sufficient evidence, it is not

enough that this court “harbor a subjective level of reasonable doubt to

overturn [the] conviction.” Id. We cannot conclude that a conviction is clearly

wrong or manifestly unjust simply because we would have decided differently

than the jury or because we disagree with the jury’s resolution of a conflict in

the evidence.    Id.   We may not simply substitute our judgment for the

factfinder’s. Johnson v. State, 23 S.W.3d 1, 12 (Tex. Crim. App. 2000); Cain

v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). Unless the record

clearly reveals that a different result is appropriate, we must defer to the jury’s

determination of the weight to be given contradictory testimonial evidence

because resolution of the conflict “often turns on an evaluation of credibility

and demeanor, and those jurors were in attendance when the testimony was

delivered.” Johnson, 23 S.W.3d at 8. Thus, unless we conclude that it is

necessary to correct manifest injustice, we must give due deference to the

factfinder’s determinations, “particularly those determinations concerning the

weight and credibility of the evidence.” Id. at 9. Our deference in this regard

safeguards the defendant’s right to a trial by jury. Lancon, 253 S.W.3d at 704.

An opinion addressing factual sufficiency must include a discussion of the most




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important and relevant evidence that supports the appellant’s complaint on

appeal. Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).

                        IV. S UFFICIENCY OF THE E VIDENCE

      In two points, Ngo argues that the evidence is legally and factually

insufficient to convict him of murder. Specifically, he contends that no credible

testimony existed to establish the elements of murder because every witness

was “either lying, granted immunity for perjury, or wasn’t sure of what [he or

she] knew.”

                               A. Law on Murder

      A person commits murder if he intentionally or knowingly causes the

death of an individual or intends to cause serious bodily injury and commits an

act clearly dangerous to human life that causes the death of an individual. Tex.

Penal Code Ann. § 19.02(b)(1)–(2) (Vernon 2003).

                         B. Legally Sufficient Evidence

      Viewing the evidence in the light most favorable to the verdict, the record

demonstrates that two eyewitnesses—both of whom personally knew

Ngo—testified that they saw Ngo fire a pistol into the crowd outside of the pool

hall. See Jackson, 443 U.S. at 319, 99 S.Ct. at 2793; Clayton, 235 S.W.3d

at 778.    A third witness—who also personally knew Ngo—testified that

moments before the shooting, she saw Ngo and Nguyen get something out of

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the trunk of Nguyen’s car, that she heard shots and saw the crowd running,

and that Ngo and Nguyen then forced her into the car and ordered her to drive

them to Houston. The same witness testified that during the trip to Houston,

Ngo confessed to firing the shots outside of the pool hall. A fourth witness

testified that she also knew Ngo personally and saw him at the pool hall on the

night of the shooting. She explained that she received two descriptions of the

shooter—that he was short and bulky and that he had a black eye—and that

Ngo matched both of the descriptions. 2 A fifth witness testified that Ngo had

told him that he had shot and killed someone at a game room in Tarrant County.

      Viewing the evidence in the light most favorable to the jury’s verdict, we

hold that a rational trier of fact could have found that the testimony of the

witnesses at trial was sufficient to establish the elements of murder beyond a

reasonable doubt. See Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; Clayton,

235 S.W.3d at 778; see also Tex. Penal Code Ann. § 19.02(b)(1)–(2)




      2
        … Ngo argues that the evidence regarding whether he had a black eye
on the night of the shooting is inconsistent. This argument is not appropriate
for our legal sufficiency review, in which we must presume that the factfinder
resolved any conflicting inferences in favor of the prosecution and defer to that
resolution. See Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; Clayton, 235
S.W.3d at 778. Consequently, we will address Ngo’s argument, which he also
raises in his factual sufficiency point, in our factual sufficiency review below.

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(providing elements of murder).   Accordingly, we hold that the evidence is

legally sufficient to support Ngo’s conviction. We overrule Ngo’s second point.

                       C. Factually Sufficient Evidence

      Ngo argues that factually insufficient evidence exists to support his

conviction because the evidence regarding whether he had a black eye on the

night of the shooting is inconsistent.     He points to the following alleged

inconsistencies to support his argument: (1) Vo, the manager of the pool hall,

testified that she received two different descriptions of the shooter—one as a

guy with a black eye and one as a short and bulky man; (2) Sengvilay testified

that Ngo had a black eye on the night of the shooting, but he did not tell the

police that fact; (3) Ly testified that she did not see if Ngo had a black eye

because she was not close enough to him; and (4) Dao, who traveled to

Houston with Ngo immediately after the shooting, testified that she did not

remember if Ngo had a black eye.     Ngo argues that this testimony created

conflicting evidence and that “the most important fact, the black eye, was not

mentioned to police until much later in time.”




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      But this testimony is not contradictory.3 It is understandable, as the State

points out, that eyewitnesses who knew Ngo by name would describe him by

name, rather than as a guy with a black eye, when they talked to police.

Furthermore, even if the witnesses’ testimony was inconsistent, the jury was

free to believe their trial testimony over the statements they made to the police.

See Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991); Sharp

v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986); Baker v. State, No.

14-08-00047-CR, 2009 WL 838257, at *3 (Tex. App.—Houston [14th Dist.]

Mar. 31, 2009, no pet.) (mem. op., not designated for publication); see also

Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. App.), cert. denied, 528

U.S. 1026 (1999) (noting that inconsistency goes to the credibility of the

witnesses and the jury is the sole judge of that issue).

      Ngo also contends that Lee’s testimony was not credible because “it

[was] entirely based on [his] desire to obtain his freedom.” He asserts that the

State granted Lee “immunity for perjury” in exchange for his testimony, but this



      3
        … Following the shooting, an officer presented Sengvilay and two or
three other people with a photo spread, which included a photo of Ngo and five
others. Sengvilay identified Ngo as the shooter but two of the other
people—whose identities are not revealed in the record—could not identify the
shooter. On appeal, Ngo argues that this inconsistency renders the evidence
factually insufficient to support his conviction. However, at trial, the officer
testified that these two people could not identify anyone in the photo spread
because they did not see the shooter at the time of the offense.

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allegation is not supported by the record. Moreover, it was within the purview

of the jury to determine the credibility of Lee’s testimony. See Fuentes, 991

S.W.2d at 271. The jury was presented with ample evidence concerning the

circumstances of Lee’s testimony and was thus positioned to resolve questions

about his credibility and the weight to be given to his testimony. See Bonham

v. State, 680 S.W.2d 815, 819 (Tex. Crim. App. 1984), cert. denied, 474 U.S.

865 (1985).

      Nothing in the record suggests that anyone other than Ngo killed Doan.

See Roy v. State, 76 S.W.3d 87, 103 (Tex. App.—Houston [14th Dist.] 2002,

no pet.) (rejecting factual sufficiency complaint when eyewitness testified that

he saw defendant commit crime and defendant “did not testify or present any

contrary evidence”). Contrary to Ngo’s assertions on appeal, nothing suggests

that the witnesses were “lying” or “weren’t sure of what they knew.” Doa and

Sengvilay, both of whom personally knew Ngo, witnessed Ngo fire a pistol into

the air and into the crowd in front of him. Three witnesses testified that Doan

was shot through the head as a result of the shooting, and the medical

examiner testified that Doan died of a gunshot wound to the head.          Two

witnesses testified that Ngo confessed to the shootings. Thus, despite Ngo’s

arguments that there were “inconsistencies” in the testimony and that Lee’s

testimony was not credible, sufficient evidence was otherwise presented that

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supported Ngo’s conviction for murder. See Bowden v. State, 628 S.W.2d

782, 784 (Tex. Crim. App. 1982) (holding that the jury is to resolve conflicts

in evidence and such conflicts will not call for reversal if there is enough

credible testimony to support the conviction).

      We have reviewed the evidence in a neutral light, and we find no

objective basis in the record for holding that the jury’s verdict was clearly

wrong or manifestly unjust or that it was contradicted by the great weight and

preponderance of the evidence. See Lancon, 253 S.W.3d at 704; Watson, 204

S.W.3d at 414–15, 417. Rather, the evidence presented at trial was sufficient

to support the verdict, and no contrary evidence exists that would render the

evidence factually insufficient under the applicable standard of review. See

Lancon, 253 S.W.3d at 704; Watson, 204 S.W .3d at 414–15, 417; Baker,

2009 WL 838257, at *3. Accordingly, we hold that the evidence is factually

sufficient to support Ngo’s conviction. We overrule Ngo’s first point.

                               V. C ONCLUSION

      Having overruled both of Ngo’s points, we affirm the trial court’s

judgment.

                                                 SUE WALKER
                                                 JUSTICE

PANEL: LIVINGSTON, DAUPHINOT, and WALKER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: July 9, 2009

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