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LE v. STATE

Court of Appeals of Texas, Fifth District, Dallas
Jan 18, 2006
No. 05-05-00178-CR (Tex. App. Jan. 18, 2006)

Opinion

No. 05-05-00178-CR

Opinion Filed January 18, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.

On Appeal from the 194th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F03-71517-RM. Affirm.

Before Justices O'NEILL, FITZGERALD, and LANG.


OPINION


Appellant appeals his conviction for murder. After finding appellant guilty, the jury assessed punishment at life confinement and a $10,000 fine. In four points of error, appellant contends (1) the evidence is factually insufficient to support his conviction, (2) the trial court erred in instructing the jury on voluntary intoxication, (3) the trial court erred in defining reasonable doubt, and (4) the trial court erred in instructing the jury on good conduct time. For the following reasons, we affirm the trial court's judgment. On September 7, 2000, the victim, Son Le, went to a party at a Dallas motel. At the party, appellant was heard threatening to harm Jimmy Chu, a friend of Le. Le left the party with Jordan Nguyen and Jimmy to avoid a confrontation. Jordan was driving a white Honda. After they entered the highway, a blue Acura drove up beside the white Honda and fired shots. Le was shot and killed. Although neither Jimmy nor Jordan saw the shooter, they both told police they thought a person named "Heip" was responsible. Tuan Tran, the driver of the blue Acura, testified as a State's witness. Before the shooting, Tran had been at the party with appellant and Hiep. When they left, appellant told Tran to pull along side the victims' white Honda. Appellant then fired shots at the car. After the shooting, they went to a pool hall where appellant bragged about shooting the victim. Appellant testified at trial and admitting that he was in the blue Acura at the time of the shooting, but claimed Hiep was the person that fired the shots. After hearing the evidence, the jury found appellant guilty of murder. This appeal followed. In his first point of error, appellant contends the evidence is factually insufficient to support his conviction. Specifically, he challenges the sufficiency of the evidence to prove his identity as the shooter. When reviewing the factual sufficiency of the evidence, we view all the evidence, but not in the light most favorable to the prosecution. See Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). The question is whether, considering all of the evidence in a neutral light, the trier of fact was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex.Crim.App. 2004). Evidence can be factually insufficient if (1) the evidence is too weak to support the finding of guilt beyond a reasonable doubt, or (2) contrary evidence exists that is strong enough that the beyond-a-reasonable-doubt standard could not have been met. Zuniga, 144 S.W.3d at 484-85. According to appellant, the evidence is factually insufficient because (1) he testified Hiep was the shooter, (2) Hiep had more of a motive to kill the victim, and (3) Jimmy and Jordan (who did not actually see the shooter) thought Hiep responsible. Appellant acknowledges Tran identified him as the person that shot the victim, but contends Tran is not credible. We have reviewed all the evidence in a neutral light. Having done so, we cannot conclude the jury's finding that appellant shot the victim was so against the overwhelming weight of the evidence as to be clearly wrong and unjust. We overrule appellant's first point of error. In his second point of error, appellant contends the trial court erred in charging the jury on voluntary intoxication. In its charge, the trial court instructed the jury that voluntary intoxication is not a defense to prosecution. See Tex. Pen. Code Ann. § 8.04 (Vernon 2003). Assuming without deciding the evidence did not raise voluntary intoxication, we conclude appellant was not harmed. Because appellant did not object to the omission of the instruction, we reverse only if he suffered egregious harm. Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1985). Specifically, we reverse only if the error was so harmful that appellant was denied a fair and impartial trial. Tear v. State, 74 S.W.3d 555, 562 (Tex.App.-Dallas 2002, pet. ref'd). In determining the degree of harm, we look to the entire jury charge, the state of the evidence, the argument of counsel, and any other relevant information. Id. Appellant has not suggested any manner in which the jury might have been misled or confused by the instruction or how he may have otherwise suffered any harm, theoretical or actual. Nor can we perceive any such harm. See Zuliani v. State, 52 S.W.3d 825, 832 (Tex.App.-Austin 2001), rev'd on other grounds, 97 S.W.3d 589 (Tex.Crim.App. 2003). We overrule appellant's second point of error. In his third point of error, appellant contends the trial court erred in defining reasonable doubt in the jury charge. The trial court's charge instructed the jury "[i]t is not required that the prosecution prove guilt beyond all possible doubt; it is required that the prosecutor's proof excludes all reasonable doubt concerning the defendant's guilt." According to appellant, this instruction provides a reasonable doubt definition in violation of the court of criminal appeals's holding in Paulson v. State, 28 S.W.3d 570, 573 (Tex.Crim.App. 2000). We have previously held the complained-of instruction does not purport to define reasonable doubt. See O'Canas v. State, 140 S.W.3d 695, 702 (Tex.App.-Dallas 2002, pet. ref'd). We overrule appellant's third point of error. In his fourth point of error, appellant contends the trial court erred in instructing the jury regarding good conduct time because he was not eligible to receive such time. The charge given is statutorily required. See Tex. Code Crim. Proc. Ann. art. 37.07, §§ 4(a) (Vernon Supp. 2003); Luquis v. State, 72 S.W.3d 355, 363 (Tex.Crim.App. 2002). Appellant has not attempted to show the charge violated his constitutional rights. We overrule appellant's fourth point of error. We affirm the trial court's judgment.


Summaries of

LE v. STATE

Court of Appeals of Texas, Fifth District, Dallas
Jan 18, 2006
No. 05-05-00178-CR (Tex. App. Jan. 18, 2006)
Case details for

LE v. STATE

Case Details

Full title:TRI HUU LE, Appellant, v. THE STATE OF TEXAS, Appellee

Court:Court of Appeals of Texas, Fifth District, Dallas

Date published: Jan 18, 2006

Citations

No. 05-05-00178-CR (Tex. App. Jan. 18, 2006)