John Paul Bang v. State

Affirmed and Memorandum Opinion filed September 25, 2007 Affirmed and Memorandum Opinion filed September 25, 2007. In The Fourteenth Court of Appeals _______________ NO. 14-06-00809-CR NO. 14-06-00810-CR _______________ JOHN PAUL BANG, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 240th District Court Fort Bend County, Texas Trial Court Cause Nos. 41,761 & 41,762 M E M O R A N D U M  O P I N I O N A jury found appellant, John Paul Bang, guilty of aggravated assault and murder. The trial court assessed concurrent sentences of twenty years= confinement for the aggravated assault conviction and forty-eight years= confinement for the murder conviction. In three issues, appellant contends the evidence is legally and factually insufficient to support each conviction, and the trial court erred by admitting demonstrative evidence of the weapons used in the offenses. All dispositive issues are clearly settled in law. Accordingly, we issue this memorandum opinion and affirm. See Tex. R. App. P. 47.4. I. Background According to the State=s evidence, on the night of June 19, 2002, Jose Pena, a recent high school graduate, hosted a party at his home in Sugar Land, Texas. Pena=s ex-girlfriend, Ashley Pittman, arrived at the party heavily intoxicated. She told Pena that Ted Rhea had given her alcohol and some pills. When Rhea later called Pittman, Pena took the phone and argued with Rhea. Around midnight, Rhea and Johnny Blevins arrived at the party in Blevins=s car. Pena pulled Rhea out of the car and struck him numerous times, leaving him nearly unconscious. During the fight, a partygoer shattered the windshield of Blevins=s car. Unable to discover who broke his windshield, Blevins drove away from the party with Rhea. As they drove back to Rhea=s apartment, Blevins stopped at his own apartment and retrieved a shotgun and an AK-47 assault rifle. Blevins and Rhea then continued to Rhea=s apartment where they were met by appellant, R. Lee Thammavong, Somseth Chindavong, and a number of others. Upon arriving at his apartment, Rhea took a short nap. After he awoke, he discovered appellant, Blevins, Chindavong, and Thammavong planning a retaliation for the breaking of Blevins=s windshield. Rhea then returned inside to sleep for the night. The group ultimately decided to use the guns from Blevins=s apartment to fire upon the Pena house, intending to vandalize the home and frighten its occupants. Appellant was to use the shotgun while Blevins fired the rifle. Additionally, they decided to use appellant=s truck as a getaway vehicle for the shooters with Blevins or Thammavong acting as the getaway driver. Chindavong and Jacquelyn Nguyen were to follow in a separate car to act as lookouts. Around 3:30 a.m. on June 20, 2002, the group carried out the planned shooting. As a result, Pena was shot through the leg, and Robert Ward was shot in the head. Pena was hospitalized for two weeks and required four surgeries. He suffered permanent scars and nerve damage to his leg. Ward died as a result of his injuries. After the shooting, appellant, Blevins, Thammavong, Chindavong, and Nguyen returned to Chindavong=s apartment. Shortly thereafter, Joshua Nguyen, Jacquelyn=s brother, heard appellant and Blevins boasting about their involvement in the shooting. After learning about Ward=s death, the participants decided to hide the guns used in the shooting. Appellant, Blevins, Chindavong, and Thammavong ultimately buried the two guns outside Thammavong=s father=s farm in Alvin, Texas. Although Sugar Land police investigated the shooting, they decided there was insufficient evidence to prosecute until November 2004 when Jacquelyn Nguyen, arrested on federal drug charges, agreed to testify concerning the shooting at issue. Based on information provided by Nguyen, police located Thammavong, who in turn disclosed the location of the two guns. The police located and recovered the guns, but both were badly corroded due to exposure to the elements. Appellant was eventually arrested. Firearms experts, investigating officers, eyewitnesses, and accomplices Blevins and Thammavong testified at trial. The jury convicted appellant for the aggravated assault of Pena and the murder of Ward. II. Legal Sufficiency of the Evidence In his first issue, appellant claims the evidence is legally insufficient to support his convictions for aggravated assault and murder. In evaluating legal sufficiency, we view the evidence in the light most favorable to the verdict and determine whether a 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); Salinas v. State, 163 S.W.3d 734, 737 (Tex. Crim. App. 2005). We ensure only that the jury reached a rational decision and do not act as a second arbiter of the weight and credibility of testimony. Muniz v. State, 851 S.W.2d 238, 246 (Tex. Crim. App. 1993). The jury is the sole judge of the credibility of witnesses and is free to believe or disbelieve all or part of a witness=s testimony. Jones v. State, 984 S.W.2d 254, 258 (Tex. Crim. App. 1998). Specifically, appellant claims the evidence is legally insufficient to support his convictions because 1) he lacked the culpable mental state for either offense; 2) Blevins=s culpable mental state and actions did not establish appellant=s guilt; 3) the State failed to provide sufficient corroborating evidence to support the accomplice testimony; and 4) with respect to the aggravated assault conviction, the State failed to prove Pena suffered serious bodily injury. A. Culpable Mental State 1. Aggravated Assault A person commits aggravated assault if he 1) intentionally, knowingly, or recklessly causes bodily injury to another and, in the course of causing such bodily injury, uses or exhibits a deadly weapon; or 2) intentionally, knowingly, or recklessly causes serious bodily injury to another. See Tex. Pen. Code Ann. '' 22.01B02 (Vernon 2003). Assault by causing bodily injury under Penal Code section 22.01(a)(1) is a result-oriented offense. Ford v. State, 38 S.W.3d 836, 844 (Tex. App.BHouston [14th Dist.] 2001, pet. ref=d). Therefore, the State must prove the defendant caused the result with the requisite culpable mental state. See id. The Penal Code defines the culpable mental states with respect to the result of a defendant=s conduct as follows: (a) A person acts intentionally, or with intent, with respect to . . . a result of his conduct when it is his conscious objective or desire to . . . cause the result. (b) . . . A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result. (c) A person acts recklessly, or is reckless, with respect to . . . the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that . . . the result will occur. The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care than an ordinary person would exercise under all the circumstances as viewed from the actor=s standpoint. Tex. Pen. Code Ann. ' 6.03 (Vernon 2003) The jury heard evidence supporting the State=s contention that appellant acted recklessly with respect to the result of his conduct. Appellant, Blevins, Thammavong, and Chindavong, planned to shoot at the Pena house with the intent to frighten its occupants. Blevins testified that appellant fired a shotgun multiple times at Pena=s residence while Blevins fired an assault rifle. In the course of the shooting, Pena was shot through the leg. Even if appellant did not intentionally or knowingly cause injury to Pena, the jury could have reasonably concluded that appellant=s conduct was at least reckless. Firing a shotgun at a residence at 3:30 a.m. is a gross deviation from the standard of care a reasonable person would exercise. A reasonable person would understand that, at 3:30 a.m., a residence most likely contains sleeping occupants, and firing a gun at an occupied residence involves a high risk of injury to a resident. Therefore, the evidence is legally sufficient to support the jury=s finding that appellant possessed the requisite culpable mental state for aggravated assault. 2. Murder A person is guilty of murder if he 1) intentionally or knowingly causes the death of another; 2) commits an act clearly dangerous to human life with the intent to cause serious bodily injury; or 3) intentionally or knowingly commits a felony, other than manslaughter, and in the course of and in furtherance of that offense he commits an act clearly dangerous to human life that causes the death of an individual. See Tex. Pen. Code Ann. ' 19.02 (Vernon 2003). Here, the State presented evidence that appellant intentionally or knowingly committed a felony and, in the course of and in furtherance of that offense, he committed an act clearly dangerous to human life that caused the death of an individual. See id. A person is guilty of felony deadly conduct when he Aknowingly discharges a firearm at or in the direction of . . . a habitation . . . and is reckless as to whether the habitation . . . is occupied.@ Tex. Pen. Code Ann. ' 22.05 (b)(2), (e) (Vernon 2003). The evidence shows that appellant intended to fire the shotgun at the Pena residence, a habitation. As stated above, firing a shotgun at a residence at 3:30 a.m. is reckless. Therefore, appellant=s act constituted felony deadly conduct. Accordingly, appellant possessed the requisite mental state for murder, even if he did not intentionally and knowingly kill Ward or intend to cause Ward serious bodily injury. B. Accomplice Liability Appellant further suggests the evidence was legally insufficient to prove he committed either offense because Blevins fired the shots that injured Pena and killed Ward. Appellant contends that he may not be held responsible for Blevins=s actions. However, under the law of parties, a person is criminally responsible as a party to an offense if the offense is committed by his own conduct or by the conduct of another for which he is criminally responsible. Tex. Pen. Code Ann. ' 7.01 (Vernon 2003). A person is criminally responsible for 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. Tex. Pen. Code Ann. ' 7.02 (Vernon 2003); see also Goff v. State, 931 S.W.2d 537, 545 (Tex. Crim. App. 1996) (stating a defendant=s criminal responsibility may be enhanced to acts in which he is not the primary actor under the law of parties). Appellant intended to, and did, aid Blevins in the assault on Pena and the occupants of his house. Appellant aided Blevins in planning the assault in order to assist Blevins=s retaliation for the breaking of his windshield. Appellant then actually fired a shotgun at Pena=s home during the assault. Therefore, even if Blevins fired the shots that injured Pena and killed Ward, appellant may be held criminally responsible for Blevins=s actions under the law of parties. See Goff, 931 S.W.2d at 545. C. Accomplice Testimony Next, appellant argues that the evidence is legally insufficient because there was insufficient corroboration of accomplice testimony. Under the accomplice-witness rule, a defendant cannot be convicted based on the testimony of an accomplice unless the testimony is corroborated by other evidence tending to connect the defendant with the offense committed. Tex. Code Crim. Proc. Ann. art. 38.14 (Vernon 2005). To determine whether sufficient corroboration exists, we eliminate the accomplice witness=s testimony from consideration and then determine whether any of the remaining evidence tends to connect the accused with commission of the crime. Longoria v. State, 154 S.W.3d 747, 758 (Tex. App.BHouston [14th Dist.] 2004, pet. ref=d). The corroborating evidence need not directly link the accused to commission of the offense, nor must it be sufficient in itself to establish guilt. Id. The accomplice-witness rule is satisfied if there is some non-accomplice evidence that tends to connect the accused to commission of the offense alleged. Id. Here, the State presented the testimony of two, and possibly three, accomplices: Blevins, Thammavong, and Jacquelyn Nguyen. Blevins and Thammavong are clearly accomplices; however, there was conflicting evidence regarding whether Nguyen was an accomplice. The jury was instructed that if it believed she was an accomplice that it could not convict appellant on her testimony alone and that it could not use her testimony to corroborate other accomplice testimony. We will assume, arguendo, the jury believed Jacquelyn Nguyen was an accomplice.[1] All three testified that they witnessed appellant shoot the Pena house with a shotgun. Additionally, Blevins and Nguyen testified that appellant participated in planning the shooting. The State presented sufficient evidence corroborating this testimony to satisfy the accomplice-witness rule. Disregarding all accomplice witness testimony, the record contains the following evidence. Rhea testified that he observed appellant participating in the planning meeting with Blevins. Further, Joshua Nguyen=s testimony established that, shortly after the shooting, appellant boasted about his use of the shotgun at the Pena residence. Additionally, investigating officers presented extensive evidence showing that a shotgun and assault rifle were used in the assault on the Pena home. This evidence tends to connect appellant to the offense. Therefore, it sufficiently corroborates the accomplice witness testimony presented at trial. D. Serious Bodily Injury to Pena Finally, appellant argues that the evidence is legally insufficient to support his conviction for aggravated assault because the record is silent regarding whether Pena suffered serious bodily injury. ASerious bodily injury@ is defined as Abodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.@ Tex. Pen. Code Ann. ' 1.07 (a) (46) (Vernon 2003). Here, Pena testified at trial that he still has scars and nerve damage causing him to feel numbness in his leg. These injuries support the jury=s finding that Pena suffered serious bodily injury. Further, to support a conviction for aggravated assault, the Texas Penal Code requires either that appellant caused serious bodily injury or caused bodily injury and used or exhibited a deadly weapon. See Tex. Pen. Code Ann. ' 22.02(a). A deadly weapon is a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury. Tex. Pen. Code Ann. ' 1.07(a)(17)(A) (Vernon 2003). Thus, even if appellant did not cause serious bodily injury, he and Blevins caused bodily injury to Pena using a deadly weapon. Accordingly, the evidence is legally sufficient to support appellant=s conviction for aggravated assault even if Pena did not suffer serious bodily injury. In sum, the evidence is legally sufficient to support the jury=s findings that appellant committed aggravated assault and murder. II. Factual Sufficiency of the Evidence In his second issue, appellant claims that the evidence is factually insufficient to support his convictions for aggravated assault and murder. To determine factual sufficiency, we view all the evidence in a neutral light and will set aside the verdict only to prevent manifest injustice. Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006). In conducting a factual-sufficiency review, we engage in a two prong test to determine whether there is some objective basis to find: 1) that the evidence in support of the jury=s verdict, although legally sufficient, is nevertheless so weak that the jury=s verdict seems clearly wrong and unjust; and 2) in considering conflicting evidence, the jury=s verdict, although legally sufficient, is nevertheless against the great weight and preponderance of the evidence. Id. at 417. To support his factual-sufficiency challenge, appellant notes that several witnesses presented some conflicting testimony. In particular, Blevins testified that Thammavong acted as the getaway driver while Jacquelyn Nguyen and Thammavong each testified that Blevins was the getaway driver. Also, Blevins testified that Thammavong was present at the planning meeting, while Joshua Nguyen testified that he never saw Thammavong at the apartment while the meeting was occurring. However, all witnesses concurred as to the material facts of the incident: appellant was present at the planning meeting; appellant fired a shotgun at the Pena house; and appellant=s car was used as the getaway vehicle for the shooters. Therefore, we cannot conclude that the evidence is so weak that the jury=s verdict appears to be clearly wrong and unjust; or that the cited inconsistencies render the verdict contrary to the great weight and preponderance of the evidence. We overrule appellant=s second issue. III. Demonstrative Evidence In his third issue, appellant claims the trial court committed reversible error by admitting two guns as demonstrative evidence. The trial court admitted a shotgun and an AK-47 rifle as demonstrative evidence to show the appearance of the guns used in the offense. At trial, the State asserted the original guns were unavailable because they were so deteriorated due to their exposure to the elements that they would not be useful to the jury. Appellant argues that the demonstrative guns were inadmissible because the original weapons were available at trial, the demonstrative guns were irrelevant to any material issue in the case, and the probative value of the demonstrative evidence was substantially outweighed by the danger of unfair prejudice. Additionally, appellant argues that the demonstrative evidence was not the best evidence because the original guns used in the crime were available, despite their corroded state. We review a trial court=s admission of demonstrative evidence for abuse of discretion. Simmons v. State, 622 S.W.2d 111, 113 (Tex. Crim. App. 1981). We have held that demonstrative evidence is admissible if 1) the original is not available; 2) if available, the original would be admissible; 3) it is relevant and material to an issue in controversy; 4) its probative value outweighs any inflammatory effect; and 5) the jury is instructed that the object is not the one used in the commission of the crime, and is to be considered solely as evidence that demonstrates the appearance of the object used in the offense. Miskis v. State, 756 S.W.2d 350, 352 (Tex. App.BHouston [14th Dist.] 1988, pet. ref=d) (citing Simmons, 622 S.W.2d at 113). In this case, the trial court acted within its discretion by concluding the original weapons were Aunavailable@ because they had become corroded and degraded since the offenses; thus, replicas were necessary to show the jury the state of the guns at the time of the offense.[2] Further, the original weapons were admissible and relevant to a material issue in the case because the jury was charged with finding whether appellant committed aggravated assault using or exhibiting a deadly weapon. See Tex. R. Evid. 401 (providing that relevant evidence is Aevidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence@). By admitting the guns as demonstrative evidence, the court allowed the jury to see examples of the weapons used during the offenses. The demonstrative weapons were the same models as the original weapons, and therefore had no inflammatory attributes. The trial judge instructed the jury that the demonstrative guns were not the ones used in the shooting at issue. Therefore, we find that the trial court did not abuse its discretion by admitting the demonstrative guns. Moreover, appellant=s reliance on the Best Evidence Rule is misguided. See Tex. R. Evid. 1002, 1003. The Best Evidence Rule applies only to writings or documents. The rule does not apply to weapons. See Simmons, 622 S.W.2d at 114. Additionally, even if the demonstrative guns were inadmissible, we conclude that any error was harmless. Erroneous admission of evidence is nonconstitutional error. See Tex. R. App. P. 44.2(b); Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998). We must disregard nonconstitutional error unless it affects an appellant=s substantial rights. Tex. R. App. P. 44.2(b); Goudeau v. State, 209 S.W.3d 713, 721 (Tex. App.BHouston [14th Dist.] 2006, no pet.). A substantial right is affected when the error had a substantial and injurious effect on the jury=s verdict. King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997); Goudeau, 209 S.W.3d at 721. Substantial rights are not affected by the erroneous admission of evidence if the appellate court, after examining the record as a whole, has fair assurance that the error did not influence the jury, or had but a slight effect. Johnson, 967 S.W.2d at 417. In assessing the likelihood that the jury=s decision was adversely affected by the error, we consider everything in the record, including testimony and physical evidence admitted for the jury=s consideration, the nature of the evidence supporting the verdict, the character of the alleged error, and how it might be considered in connection with other evidence in the case. Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002). We may also consider the jury instructions, the State=s theory, any defensive theories, closing arguments, whether the State emphasized the error, and even voir dire, if applicable. Id. at 355-56. As we have discussed, the State presented ample evidence demonstrating appellant=s guilt. Before the demonstrative evidence was introduced, the State presented testimony showing that appellant participated in planning the shooting, actually engaged in the shooting, and agreed to use his truck as a getaway vehicle. Neither party relied on admission of the demonstrative evidence in its theory of the case. The State did not emphasize the demonstrative evidence in its jury argument. Accordingly, we have fair assurances that any error in admitting the demonstrative evidence did not influence, or had only a slight effect, on the jury. We overrule appellant=s third issue. Accordingly, the judgment of the trial court is affirmed. /s/ Charles W. Seymore Justice Judgment rendered and Memorandum Opinion filed September 25, 2007. Panel consists of Justices Yates, Seymore, and Edelman.* Do Not Publish C Tex. R. App. P. 47.2(b). [1] To be an accomplice, the witness=s participation with the defendant must involve some affirmative act that promotes the commission of the offense with which the defendant is charged. Cocke v. State, 201 S.W.3d 744, 748 (Tex. Crim. App. 2006). Nguyen testified that she merely accompanied appellant and observed appellant and Blevins shoot the Pena home. However, Blevins and Thammavong testified that she accompanied them to the shooting to act as a lookout. Regardless, we need not conclusively decide whether Jacquelyn Nguyen is an accomplice for purposes of our disposition. [2] Some of our sister courts have declined to follow the unavailability requirement recognized in Miskis. See Onwuke v. State, 186 S.W.3d 81, 84 (Tex. App.BHouston [1st Dist.] 2005, no pet.); Torres v. State, 116 S.W.3d 208, 213S14 (Tex. App.BEl Paso 2003, no pet.). Regardless, even if we apply the unavailability requirement followed by this court, we cannot conclude the trial court abused its discretion by finding the original guns were unavailable. * Senior Justice Richard H. Edelman sitting by assignment.