No. 05-02-00196-CR.
Opinion Filed March 27, 2003. DO NOT PUBLISH, Tex.R.App.P. 47.
Appeal from the 219th District Court, Collin County, Texas, Trial Court Cause No. 219-80111-01. AFFIRM.
Before Justices JAMES, FITZGERALD, and LANG.
Opinion By KERRY P. FITZGERALD, Justice.
Jason Robert Lukowicz appeals his conviction for attempted murder. After finding appellant guilty, the jury assessed his punishment at twenty years' imprisonment and a $10,000 fine. Appellant brings six points of error contending the evidence is legally and factually insufficient to support his conviction and the trial court erred in admitting evidence that the incident was gang related. We affirm the trial court's judgment.
FACTUAL BACKGROUND
On March 17, 2000, John Nguyen was beaten and stabbed by a group of people in a parking lot. Although Nguyen did not die from his injuries, he is in a persistent neurovegetative state. State's Version of Events
The State's witnesses testified about the attack on Nguyen and the events surrounding it. In March 2000, Jonathan Phelps was angry with Nguyen because Nguyen was a drug dealer, and Phelps's sister, Alisa, had purchased ecstasy from Daniel Lac, who had acquired the drug from Nguyen. Phelps and Nguyen agreed to meet at a Vietnamese restaurant for lunch on March 17 to work out their differences. On the morning of March 17, several of Phelps's friends were gathered at appellant's house, including Steven Lee, Tom Choe, Peter Wang, and John Wang. Phelps called them, and they went to the restaurant to back up Phelps if he had trouble with Nguyen. Nguyen went to the restaurant with his girlfriend, Thao Le, and his friends Daniel Lac, Tim Phu, David Cruz, and Simon Ng. Thao Le got a phone call from John Wang, who asked which restaurant they were going to. Thao Le told him they were going to Taco Bell so he and Phelps's friends would not be at the Vietnamese restaurant. When they arrived at the restaurant, they saw John Wang and several of Phelps's friends driving away. However, several of Phelps's friends remained in the parking lot. John Wang and the others who had driven away soon returned to the restaurant. Nguyen went into the restaurant and met with Phelps. As they ended their talk, they shook hands and left the restaurant. As they walked out of the restaurant, Nguyen looked relaxed, as though he and Phelps had worked out their differences, and Phelps had a sarcastic smirk on his face. As Nguyen was walking to his car, appellant ran up to him, asked if he was John Nguyen, and said, "Why are you disrespecting my friend like that? That's my friend. You don't disrespect my friend." Appellant then hit Nguyen in the back of the head. Nguyen was surprised and put up his fists to defend himself. Nguyen ran, but was chased by Phelps's friends, who finally boxed Nguyen between two parked cars. Several of Phelps's friends, including appellant, began beating up Nguyen. Nguyen pulled a knife and started swinging it at his attackers, who backed off. David Moon got behind Nguyen and hit Nguyen in the back of the head, knocking him down. Then Phelps and several of his friends, including appellant, Peter Wang, Steven Lee, David Moon, and Dan Choe, beat and kicked Nguyen as he lay on the ground. Peter Wang stabbed Nguyen several times, severing Nguyen's femoral artery and causing him to bleed profusely. Nguyen screamed that he was bleeding, jumped up, and ran a few steps before collapsing. As he lay in Thao Le's arms, unconscious and bleeding, Peter Wang pointed a gun at Nguyen's head for several seconds before walking away. Phelps and his friends, including appellant, fled the scene. Several of the attackers, including appellant, Steven Lee, Peter Wang, John Wang, Tom Choe, and John Choe, went to appellant's house. Peter Wang told them he stabbed Nguyen. Appellant advised them all to "lie low" for awhile. A day or two later, appellant, Steven Lee, Peter Wang, Tom Choe, and Dan Choe went to Oklahoma City for several days. Appellant's Version of Events
Appellant did not testify, but a videotape of an interview by Plano police detectives Scott Epperson and Cindy Bennett with appellant was played for the jury. In the interview, appellant explained his version of the events. About a month before the fight, appellant received an anonymous telephone call. The caller told appellant that "John Nguyen" had given ecstasy to appellant's former girlfriend, Alisa Phelps, and the caller threatened to kill appellant. Appellant hung up on the caller after the threat. On March 17, 2000, appellant went to the restaurant with Tom Choe for lunch. At the restaurant, they met Dan Choe. While they were eating, appellant saw Phelps enter the restaurant, but appellant did not speak to him. When appellant and the Choes finished their lunch, they left the restaurant and saw a lot of people in the parking lot. Appellant heard the name "John Nguyen" and thought John Nguyen was the anonymous caller who had threatened to kill him. Appellant walked over to Nguyen and asked him if he was John Nguyen. Nguyen did not answer, but appellant accused Nguyen of calling him and threatening to kill him. Nguyen swung at appellant, and appellant dodged the blow. Appellant swung at Nguyen hitting him, and Nguyen ran away. Then a large Asian man, Tim Phu, hit appellant in the head, and appellant hit Phu, who moved away from appellant. Then appellant saw Nguyen holding a knife and charging toward him. Appellant backed away, and someone hit Nguyen in the back of the head knocking him down. When Nguyen was lying on the ground, several people jumped on Nguyen, beating him. Appellant was attacked by another person, and appellant shoved him aside. Nguyen started screaming that he was bleeding and jumped around before collapsing, bleeding profusely. Appellant then left the scene. Appellant denied knowing Steven Lee, John Wang, Peter Wang, and David Moon. Appellant denied hiding from the police after the fight and explained he was staying with various friends for several days. SUFFICIENCY OF THE EVIDENCE
In his first through fourth points of error, appellant contends the evidence is legally and factually insufficient to support his conviction as a party. When reviewing the legal sufficiency of the evidence, this Court must examine the evidence in the light most favorable to the verdict 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 (1979); Young v. State, 14 S.W.3d 748, 753 (Tex.Crim.App. 2000); Wilson v. State, 7 S.W.3d 136, 141 (Tex.Crim.App. 1999). In making this determination, the reviewing court considers all the evidence admitted including improperly admitted evidence. Conner v. State, 67 S.W.3d 192, 197 (Tex.Crim.App. 2001); Holberg v. State, 38 S.W.3d 137, 139 (Tex.Crim.App. 2000). Questions concerning the credibility of witnesses and the weight to be given their testimony are to be resolved by the trier of fact. Mosley v. State, 983 S.W.2d 249, 254 (Tex.Crim.App. 1998); Whitaker v. State, 977 S.W.2d 595, 598 (Tex.Crim.App. 1998). The standard of review in a circumstantial evidence case is the same as in a direct evidence case. King v. State, 895 S.W.2d 701, 703 (Tex.Crim.App. 1995). In analyzing whether the evidence was factually sufficient to support the conviction, we must determine "whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof." Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000) (adopting the complete civil factual sufficiency standard of review). We must set the verdict aside only if it is so factually insufficient or against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. See id.; Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). In conducting this analysis, the appellate court must defer to the trier of fact's determination concerning the weight given contradictory evidence. See Johnson, 23 S.W.3d at 8; Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App. 1997); Santellan v. State, 939 S.W.2d 155, 164-65 (Tex.Crim.App. 1997). The reviewing court is not free to reweigh the evidence and set aside a guilty verdict merely because the reviewing judges feel that a different result is more reasonable. See Clewis, 922 S.W.2d at 135. Rather, the purpose of this analysis is to allow an appellate court, in the exercise of its fact jurisdiction, to prevent a manifestly unjust result. See Cain, 958 S.W.2d at 407; Clewis, 922 S.W.2d at 135. The trial court charged the jurors that they could find appellant guilty as a party under section 7.02(a)(2) and 7.02(b) of the penal code. Under section 7.02(a)(2), "A person is criminally responsible for an offense committed by the conduct of another if: . . . (2) 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." Tex. Pen. Code Ann. § 7.02(a)(2) (Vernon 2003). In his first and second points of error, appellant contends the evidence is legally and factually insufficient to convict appellant of attempted murder as a party under section 7.02(a)(2). Appellant argues no evidence shows he specifically intended to kill Nguyen. The trial court charged the jury to find appellant guilty if it found appellant acted with the intention of promoting or assisting Peter Wang in committing the offense of attempted murder by encouraging, soliciting, directing, aiding, or attempting to aid Peter Wang's commission of attempted murder of Nguyen. A jury may infer a party's intent from his conduct, words, and acts. E.g., Hart v. State, 89 S.W.3d 61, 64 (Tex.Crim.App. 2002); Manrique v. State, 994 S.W.2d 640, 649 (Tex.Crim.App. 1999). In this case, Raymond Nguyen-a friend of Nguyen's but no relation-testified appellant was part of the group beating Nguyen as he lay on the ground after Moon knocked him down. It was during this beating that Peter Wang stabbed Nguyen repeatedly, severing his femoral artery and causing him to bleed profusely. The jury could infer from appellant's participation in the beating after Nguyen was knocked down that he did so to assist Peter Wang's attempt to kill Nguyen and that his participation in the beating encouraged and aided Peter Wang in his attempt to kill Nguyen. We hold the evidence is legally sufficient to support appellant's conviction. We overrule appellant's first point of error. In his second point of error, appellant contends the evidence is factually insufficient to support his conviction as a party under section 7.02(a)(2). Appellant asserts the evidence is factually insufficient because Steven Lee testified appellant did not participate in beating Nguyen after Moon knocked him down and because Raymond Nguyen testified at one point that he did not remember appellant participating in the beating. Raymond Nguyen's testimony, in context, shows he saw appellant between the cars during the beating before Moon knocked down Nguyen, but Raymond could not see appellant hitting Nguyen because there was so much else happening and there were so many people crowded around Nguyen. However, Raymond testified that after Nguyen was knocked down, appellant was part of the group kicking and punching Nguyen. The jury could infer from Raymond's testimony that appellant was beating up Nguyen even before he was knocked down, although it was too crowded for Raymond to see whether appellant hit Nguyen, and that appellant kicked and punched Nguyen after he fell to the ground. The jury was free to disregard Steven Lee's testimony that appellant did not hit Nguyen after he was knocked down. See Johnson, 23 S.W.3d at 8 (appellate court must defer to jury's credibility determinations). Appellant also argues the evidence is factually insufficient because no evidence shows he knew Peter Wang carried a knife or that he knew Peter Wang would stab Nguyen. The jury could infer, however, that appellant's actions of kicking and hitting Nguyen in concert with several other people show he intended to assist his fellow assailants, including Peter Wang, in attempting to kill Nguyen. Appellant's argument lacks merit. After a neutral review of all the evidence, we conclude appellant's conviction of attempted murder as a party under section 7.02(a)(2) is supported by factually sufficient evidence and is not manifestly unjust. We overrule appellant's second point of error. Because we have found the evidence is legally and factually sufficient to support appellant's conviction as a party under section 7.02(a)(2), we need not consider whether the evidence is legally and factually insufficient to support his conviction as a party under section 7.02(b). Accordingly, we do not reach appellant's third and fourth points of error. See Tex. R. App. P. 47.1 (court's opinion must address every issue "necessary to final disposition of the appeal"). GANG ACTIVITY
In his fifth and sixth points of error, appellant contends the trial court erred in admitting the opinion of Plano Police Officer Grant Harp that the stabbing was the result of "gang members supporting another gang member or members to fulfill a vendetta against the victim, John Nguyen." Harp's Qualifications
In his fifth point of error, appellant contends the trial court erred in overruling his objection that Harp was not qualified to testify as an expert on gang activity. "The question of whether a witness offered as an expert possesses the required qualifications rests largely in the trial court's discretion. Absent a clear abuse of that discretion, the trial court's decision to admit or exclude testimony will not be disturbed." Wyatt v. State, 23 S.W.3d 18, 27 (Tex.Crim.App. 2000). The trial court does not abuse its discretion if its decision is within the zone of reasonable disagreement. Weatherred v. State, 15 S.W.3d 540, 542 (Tex.Crim.App. 2000). The party presenting the witness as an expert has the burden of proving the expert is qualified. Wyatt, 23 S.W.3d at 27. "The special knowledge which qualifies a witness to give an expert opinion may be derived from specialized education, practical experience, a study of technical works, or a varying combination of these things." Id. (quoting Penry v. State, 903 S.W.2d 715, 762 (Tex.Crim.App. 1995)). In this case, Harp testified his special knowledge came from reading particular books about gangs, attending seminars about gangs, and actively tracking gangs and gang members in his work as a police officer. Appellant argues Harp is unqualified because he had not heard of the gangs involved in this case before March 17, 2000; however, the record does not show an expert would have been aware of these particular gangs in March 2000. Appellant argues Harp is unqualified because the web site he used as part of the basis of his opinion did not contain appellant's name or picture; however, whether the web site mentioned or depicted appellant does not affect Harp's qualifications. Finally, appellant argues Harp was unqualified to testify as an expert because "[h]e had only testified three times in the capacity as a gang expert and the only teaching he had done was to civilians." This evidence shows other courts have found Harp qualified as an expert on gangs. The court of criminal appeals has not required that experts must have taught other experts before they can be qualified to testify as experts. We conclude the trial court did not abuse its discretion in overruling appellant's objection to Harp's qualifications. We overrule appellant's fifth point of error. Rule 403
In his sixth point of error, appellant contends the trial court erred in admitting Harp's opinion because its probative value was substantially outweighed by the danger of unfair prejudice. See Tex. R. Evid. 403. When a defendant objects under rule 403, the trial court must weigh the probativeness of the evidence against its potential for unfair prejudice, that is, the tendency of the evidence to suggest a decision on an improper basis, commonly, though not necessarily, an emotional one. Montgomery v. State, 810 S.W.2d 372, 387 (Tex.Crim.App. 1990) (op. on reh'g). The trial court must determine whether the danger of undue prejudice outweighs the probative value of the evidence in view of the availability of other means of proof and other factors appropriate for making decisions of this kind under rule 403. Id. at 372. The court should weigh the following factors: (1) its inherent probativeness, that is, how compellingly evidence of the extraneous misconduct serves to make more or less probable a fact of consequence; (2) the strength of the proponent's evidence to show that the opponent in fact committed the extraneous conduct; (3) the potential of the extraneous conduct to impress the jury in some irrational but nevertheless indelible way; (4) the amount of trial time needed by the proponent to develop evidence of the extraneous misconduct such that the jury's attention is diverted from the charged offense; and (5) how great is the proponent's "need" for the extraneous misconduct. Id. at 390. The last inquiry includes three subparts: (a) does the proponent have other available evidence to show the fact of consequence that the extraneous misconduct is relevant to show; (b) if so, how strong is that other evidence; and (c) is the fact of consequence related to an issue that is in dispute? Id. The trial court's role in deciding relevancy and balancing probativeness and prejudice is a matter of the trial court's discretion. The reviewing court must give the trial court wide latitude to exclude, or, particularly in view of the presumption of admissibility of relevant evidence, not to exclude evidence of extraneous misconduct as the trial court sees fit. So long as the trial court operates within the bounds of its discretion, we should not disturb the trial court's decision whatever it may be. Id. As long as the trial court's decision is within the zone of reasonable disagreement, the appellate courts will not intercede. Id. at 391. Considering the factors listed above, (1) the extraneous gang-participation evidence was relevant and probative to a fact of consequence, that appellant intended to assist Peter Wang's commission of attempted murder against Nguyen because Phelps and appellant had a vendetta against Nguyen. (2) Outside the presence of the jury, Harp testified that he interviewed Steven Lee, who said he (Lee) was a member of the of the Sangdong Loyalty gang, which was the youth branch of the Sangdong Power gang. Lee told Harp appellant was a member of the Sangdong Power gang. Before the jury, Harp did not testify that appellant was a member of a gang but testified only that the attempted murder, in which appellant participated, was the result of "gang members supporting another gang member or members to fulfill a vendetta against the victim, John Nguyen." (3) The trial court greatly restricted the scope of Harp's testimony, which limited the potential for his testimony to impress the jury in an irrational and indelible manner. (4) The restrictions on Harp's testimony made it short. (5)(a) The only other evidence presented by the State that tended to show the violence was gang related was Lee's testimony that he, appellant, and the others at appellant's house on the morning of March 17, 2000 went to the restaurant "to back up and help Jonathan Phelps if he got in trouble with John Nguyen." (5)(b) Lee's testimony, however, was not strong because all the evidence shows that when the fight started, Phelps had not "got[ten] in trouble with John Nguyen." (5)(c) As discussed above, the fact of consequence, that the attempted murder was gang-related violence, was related to the disputed issue of whether appellant's participation in beating Nguyen was with the intent to assist or promote Peter Wang's attempted murder of Nguyen. Considering all these factors, we conclude the trial court did not abuse its discretion in overruling appellant's rule 403 objection to Harp's testimony. We overrule appellant's sixth point of error. We affirm the trial court's judgment.