Ngo v. State

of the trial judgment affirm the We

court.

KELLER, P.J., KEASLER

HERVEY, JJ., concurred. NGO, Appellant, Cuong

Thanh of Texas.

The STATE

No. PD-0504-04. Texas, Appeals of Criminal

Court

En Banc.

March Derieux, for Longview, Ap- L.

Elizabeth pellant. Jr., DA, Assist. Rogers,

Donald W. Attorney, Houston, Paul, State’s Matthew Austin, for State.

OPINION J., COCHRAN, opinion of delivered PRICE, MEYERS, in which the Court HOLCOMB, WOMACK, JOHNSON J.J., joined. credit card

Appellant was the Texas abuse under section 32.31 Penal Code. The indictment contained I. alleging paragraphs, three that, trial on The evidence at showed card, stealing a credit re- acts— 13, 2002, appellant December went to a card, ceiving a stolen credit and fraudu- 11 p.m. karaoke bar Houston around lently presenting pay a credit card to couple gave of beers. He ordered goods or services. The three application Nguyen, manager Hanh the Vietnamese paragraphs permitted bar, a credit card. The name if to convict some of the Hong Truong. Ngu- credit card was Mr. card, jurors found that he stole the credit yen immediately suspicious because others believed received a stolen credit name, and, “Hong” serendipi- ais woman’s card, thought and still others that he tously enough, “Hong name Truong” is the fraudulently presented it. The Eastland Nguyen’s Nguyen Mr. ex-wife. Mr. of Appeals Court held that immediately his called ex-wife and asked charge require “did not Meanwhile, her to come down to the bar. unanimously agree upon any one of the appellant large pulled out stack of credit theories,” thus, three alternate and it vio- cards, plan as well as an HMO and dental lated both the Texas Constitution and card, Hong Truong, all in the name of state require statutes which a unanimous I asked: “Which one of these can use?”

jury verdict.1 The court of appeals further them, Nguyen any Mr. declined to take that, although found appellant affirmative- appellant quietly finishing sat his beer. ly objection” stated that he had “no to the Nguyen security guard Mr. told his jury charge, this error was reversible un- call police. They der arrived at appellant Almanza2 because about suffered “egregious Hong Truong. harm.”3 same time as She told her granted We petition discretionary policeman State’s for ex-husband and the that all of review to determine the her credit cards had been stolen her correctness that deci- when sion.4 apartment burglarized Because we with the court of few weeks result, appeals’ reasoning and visiting we affirm its earlier. She had come home from judgment. grandfather hospital her sick in the on State, Ngo (Tex. 1. v. nied his to a unanimous verdict when 2004). App.-Eastland disjunctively the trial court submitted the alleged State’s theories of conviction in the State, (Tex. 2. v. 686 S.W.2d 157 Almanza charge indictment to the in its at the Crim.App.1985). guilt-innocence stage of the trial with a form, general verdict where each of the Ngo, S.W.3d at 202. alleged sep- theories of were conviction not granted grounds We both of the State’s for offenses, by appellate arate as found said review: court, merely but alternative means of com- 1) erroneously ap- The court below held that mitting the offense of credit card abuse as pellant's trial counsel’s affirmative state- 32.31(b) defined Section of the Penal objection ment that there was no to the Code. charge ap- court's did not forfeit or waive Merits, In its on Brief the State aban- pellant’s right to fundamental error review ground very doned its first for review as that of the court’s under Almanza had, meantime, issue been resolved State, (Tex.Crim.App.1985). 686 S.W.2d 157 adversely to the State in Bluitt v. 2) erroneously The court below determined (Tex.Crim.App.2004). S.W.3d 51 We there- contrary prior to and in conflict deci- ground fore dismiss the State’s re- first Supreme sions of this Court and the Court only view and address the second issue. appellant of the United States that was de- burglarizing He denied Ms. that the lock credit card.” Thanksgiving Day and found Truong’s apartment stealing of her and her on her window had been broken having cards. He did admit to All of her credit apartment ransacked. burglary conviction. prior in her purse had been in a bedroom cards knew, none of the As far as she closet. paragraphs of the application The burglary cards had been used after appel- to find charge instructed them. she had called and canceled because if it that he commit- lant concluded credit card that Truong Ms. identified the any one of three credit card abuse ted Nguyen as one given had Mr. counsel stated Appellant’s acts.5 had stolen of her credit cards that been objection had no that he burglary. during charge. Truong had seen around

Ms. jury during his prosecutor told the complex several times. He apartment her did closing argument before, door but she had knocked her jurors unanimously require for him because she open did not the door of the three alternate agree upon any one Appellant had also had a small child. theories: money. He made her ner- asked her for ways I have all the You know what? vous. know, You he prove that we can it. know, that, you he re- even testified that he had come to

Appellant testified from someone else. ceived the card and had lived here America from Vietnam how, you I know—/ don’t don’t know years, speak for eleven but he did not or two proved know I all three or one shrimp He worked on a English. much if know, idea. You what or all—I have no Mike gave boat. He said that his friend for sure the credit I do know is that they play- him the credit cards while were card, right had no to use it. That’s he give to ing pool. appellant Mike wanted present to it clear. And that he tried Nguyen, appel- so the credit cards to Mr. Nguyen. presented it to Mr. and was Nguyen until Mr. lant waited at the bar something for trying get And to he was Meanwhile, bought in. a beer came simple how it. That’s clear. That’s He paid and for it with cash. insisted added). (emphasis is. try pay a credit card he did not use general guilty a verdict for the “I don’t know about returned beer. in a years to two appellant I’m I never and sentenced card because from Vietnam. fine. jail facility, plus state nothing card. I know about $3500 use credit holder, Hong Truong, know- by card application paragraphs owned 5. The read: stolen; or ing had been the credit card Now, you the evidence be- if find from beyond a you evidence If find from the [appellant] yond a reasonable doubt [appellant] on or reasonable doubt December, 2002, day of or about the 13th December, day about the 13th unlawfully, intentionally then and there did fraudulently, did intent to obtain benefit knowingly card owned steal a credit Nguyen a credit present to [H]anh use or holder, Truong, Hong with intent card the effec- knowing use was without card deprive property the cardholder of the cardholder, Hong tive consent of of the the effective consent and without Truong, namely consent of without cardholder; or kind, had knowing the credit card and beyond a you find from the evidence If defendant, you then not been issued [appellant] on or doubt reasonable in the December, 2002, [appellant] will day did 13th about the find unlawfully knowingly indictment. and then and there added). (Emphasis a credit card receive with intent to use point In his sole appeal, committing single error on offense of credit card appellant argued abuse, that his constitutional paragraphs allege but those did not statutory right to a unanimous separate credit card abuse offenses. Sec- disjunctive “by verdict was violated ond, argues alternatively the State submission in of two or application paragraphs “merely showed re- First, separate more offenses.”6 the court peated instances commission of the of- of appeals, preseiently anticipating this appel- fense of credit card abuse.” Because State,7 Bluitt v. Court’s decision con- request lant failed to the State to elect cluded that it could address the merits of rely upon which offense would appellant’s complaint though even he had conviction, permissible it was to submit the affirmatively objection said he had no disjunctive. offenses Second, jury charge.8 the court of juror Each then could decide which of the appeals held that the trial court erred in thought three criminal acts it the State submitting the three separate offenses set proven general had and return a verdict so application out in paragraphs long jurors unanimously as all of the disjunctive because such a agreed that he had general committed the charge would allow for a non-unanimous sum, offense of credit card abuse. ac- Third, jury verdict.9 it concluded that this error, cording to the there was no “egregious” error was under Almanza “be- much egregious less harm. deprived cause it of his to a duty analyzing Our first and, thus, denied jury-charge issue is to decide whether er fair impartial trial.”10 Then, error, ror if find exists.11 we we The court of appeals reversed judg- analyze that error for harm.12 Preserva ment of the trial court and remanded the charge tion of error does not become an case for a new trial. degree issue until we assess harm.13 The II. necessary depends of harm for reversal In petition review, appellant preserved its for whether the the error discretionary Almanza, by objection.14 State contends that Under ap- the court of peals in finding charge requires erred error appellant was reversal when the denied his properly objected defendant verdict. has First, argues it application para- and we find “some harm” to his graphs merely set out rights.15 alternate means of When defendant fails to ob- 6. 129 S.W.3d at 199. 10. Id. at 202. (Tex.Crim.App.2004)

7. 137 S.W.3d State, 11. Middleton v. 125 S.W.3d ("[w]e hold that an affirmative denial of ob- (Tex.Crim.App.2003) (citing Hutch case, jection, equiv- as in this shall be deemed (Tex.Crim.App. 922 S.W.2d 170-71 object. appellant may alent to a failure An 1996)). unobjected-to charge ap- raise such error on peal, may but obtain reversal for such Middleton, 12. 125 S.W.3d at 453. harm”). egregious error unless it resulted in Id. 13. ("we Ngo, any 8. S.W.3d at fail to see distinction, meaningful of Al- context Hutch, 171). (citing 14. Id. 922 S.W.2d at manza, object between a failure and an approval jury charge”). affirmative Almanza, 171; 686 S.W.2d at see also Hutch, 9. Id. at 201. 922 S.W.2d at 171. cardholder, objection has no fective consent of the ject or states that he charge, jury- Truong.20 not reverse for Hong we will charge error unless the record shows offenses in The State all three “egregious harm” to the defendant.16 three within paragraphs Thus, alleged charge we review error sought count one It one of indictment. (1) considering er- questions: two whether conviction for the of one credit commission (2) charge; and ror existed whether by proving any card offense abuse three harm resulted from the error to sufficient acts, occurring at different criminal three turn compel reversal.17 We first to the times, and different in three different of error. question ways. A. Error existed charges the State differ When it for a because allowed non-unani- acts, regardless ent whether mous verdict. those constitute violations of same acts charging The indictment with statutory provisions, or different credit card abuse under section 32.31 must it cannot return a be instructed that statutorily alleged the Penal Code unanimously agrees unless it different criminal acts: upon the commission of these

1) stealing by Hong example, card owned credit criminal acts.21 In this

Truong;18 must unani all twelve members at 2) did least receiving by mously agree card a credit owned he knowing it had one of three different acts: either stole Hong Truong, stolen, acting card; in- he Truong’s been with the Ms. or received it;19 card, tent to use it was stolen knowing her credit fraudulently; 3) intending to use card the in- presenting a credit fraudulently presented her credit card fraudulently, tent to a benefit obtain knowing ef- with intent to obtain a benefit.22 the use was without the Bluitt, 53; Almanza, apartment cards and stole her credit himself original the bur- S.W.2d at 171. or he obtained them from belonged glar, knowing that the cards to State, 57, Posey v. S.W.2d 60 & n. 17. See else, to use and he also tried Ms. someone (Tex.Crim.App.1998). Truong's pay to beer. credit cards for his charged appellant with both State could have 32.31(b)(4). § 18. Tex. Penal Code and ob- of these credit card abuse offenses charged appel- two convictions had it tained 19. Id. separate lant in counts instead Crim. Proc. art. paragraphs. See TexCode 32.31(b)(1)(A). § 20. Tex Penal Code 21.24(b) (‘‘[a] many may count contain same separate paragraphs charging the of- (Tex. S.W.3d 21. Francis v. may necessary, paragraph but no fense as ("[t]he require Crim.App.2000) unanimity offense”); see also charge than one more convicting risks ment is undercut when (Womack, State, 36 at 126 Francis v. S.W.3d acts, defendant different instead of the J., (stating concurring) law allows "[o]ur conviction”) agreeing on act for a the same only para- to be in each one offense Holley, (citing 942 F.2d United States v. indictment, information, or com- graph of an (5th Cir.1991)). Here, State, having plaint. chosen to the required to evidence, plead only paragraph, was one upon it is en- 22. Based the record rely. on to This elect one incident which jury could tirely possible have found giving only requirement is not essential two of crimi- committed these Truong’s requisite of the burglarized defendant the notice Ms. nal acts: either case, however, every this the word “unanimous- this context means that each and ly” only in appeared “boilerplate” sec- juror agrees that the defendant committed tion charge dealing of the with selec- same, criminal act. single, specific tion of the foreman: Stealing Monday a credit card on is not room, you you After retire to the specific criminal offense as re- same your should select one of members as ceiving Tuesday a stolen credit card on your duty Foreman. It is his or her presenting a stolen credit card to a bar- deliberations, preside your vote with Indeed, Wednesday. stealing tender on you, you unanimously and when have Monday at 9:00 card a.m. on is verdict, agreed upon certify your specific the same re- offense as by using appropriate verdict form ceiving a stolen credit card at 9:00 a.m. on attached hereto and signing the same as all Monday. These are credit card abuse Foreman. offenses, sure, they to be but are not the Here the could well have believed that same, specific credit card abuse criminal they only need be unanimous about their acts committed at the same time or with of guilty “verdict” or not the same rea mens and the same actus general offense of credit card abuse. In- reus. deed, unanimity instruction is worse saying nothing

than The State is mistaken in first because it affirmative- its ly supports prosecutor’s argument simply erroneous that the trial court sub jury argument jurors need mitted a “credit card abuse” offense only on their ultimate general “verdict” of statutory different manners and guilty, specifying rather than they phrase means. The “manner or means” need to unanimously agree on any one of describes how the defendant committed specific the three criminal acts out in set specific statutory criminal act. It does jury charge. rely not mean that the can upon State constitution, laundry Under our list of different criminal state acts and una- nimity cases, required felony and, is let the individual take their pick statutes, under our state unanimity is re- which each believes the defendant committ quired in all criminal cases.23 Unanimity ed.24 upon The State relies Schad v. Ari- defend, against viction’’); helps ("[w]e which to assure that id. at 111 S.Ct. 2491 unanimous”) juiy's (foot- bewill permit charging would not ... an indictment omitted). note that the defendant assaulted either X on Tues- day Wednesday, despite In this affirmatively the State or Y on the 'moral decided J., acts”)(Scalia, only certainly equivalence' to seek one conviction. It was of those two entitled charge only concurring). to do so. But it can specific criminal paragraph; offense in one Francis, (Womack, 23. See 36 S.W.3d at 126 charge cannot different violations of the same J., V, 13; concurring) (citing § art. Const, generic offense the commission of different Tex. 37.02, 36.29(a), TexCode Crim. Proc. arts. single paragraph criminal acts in a and then 37.03, 45.034-45.036). unanimity The re general seek a non-unanimous "credit card Arizona, quirement complement helps is a guilty to and in abuse" verdict. See Schad v. 624, 633, 2491, effectuating "beyond the a reasonable U.S. doubt” 501 111 S.Ct. 115 (1991) proof. Gip ("nothing standard of See United States v. history L.Ed.2d 555 in our son, 453, (5th Cir.1977). suggests 7 that the Due F.2d 457 n. Process Clause would

permit anyone a State to convict under a definitive, charge handy, though generic any of 'Crime' so 24. A combi- not rule of embezzlement, jury findings statutory defining nation of of reck- thumb is to look to the verb murder, evasion, steal, driving, burglary, less tax or the act. criminal That verb—such as receive, littering, example, present for would suffice for con- or section 32.31 —in zona,25 commission, a support upon but that ease does not its means of jury a argument, rather it holds that must more than the indictments were re- specific criminal act be unanimous what specify In quired to one alone. these Schad, In the defendant committed. the cases, litigation in “differ- generally, as Supreme Court noted that the actus reus jurors may persuaded by ent be differ- jurors “murder.” All had twelve to evidence, they pieces ent of even when agree that the committed that defendant Plainly the agree upon bottom line. They act. did not need to unanimous be general there is no requirement of on the issue the defendant whether agreement preliminary reach on the or in premeditation murdered “with the factual issues which underlie the ver- robbery.”26 of committing course The dict.” premedita- factual of preliminary questions Furthermore, the in plurality opinion robbery go tion or “how” he committed reasoning has been the Schad undercut murder, not whether he committed the Supreme and result Court’s later Supreme act of murder. As the Court States.28 decision Richardson v. United explained: more recent held Court suggested have never in re- We that, enter- “continuing under the criminal turning general verdicts such cases statute, jurors “agree unani- required prise” should be must Code, upon requirements generally Penal is act under federal law.” Fran- cis, 1; jurors unanimously agree. which all must at id. at 127 n. 11 36 S.W.3d 125 n. Judge Gipson, J., (Womack, See United States v. in which concurring). stated: Wisdom 2491, L.Ed.2d 25. 501 U.S. 111 S.Ct. unanimity jurors to requires ... be The rule (1991) (plurality op.). agreement just what in substantial step preliminary to de- defendant did aas termining is whether the defendant Id. at 111 S.Ct. 2491. charged. Requiring the vote the crime jurors a defendant twelve to convict does 631-62, 2491; S.Ct. see also Id. to insure to a little that his Aguirre 324 - 27 protected prerequisite is unless this reh’g) (general (Tex.Crim.App.1987) (op. on consensus as to the defendant’s proper alleged alter verdict form when State required. course of action is also committing means of one murder —in native (concluding 553 F.2d at 457-58 federal causing felony- tentionally death victim’s or “bartering, selling, criminalizing statute murder). Similarly, under Schad disposing" of or a stolen vehicle interstate Yussu- Aguirre, the State could Prince “receiving, concealing, or stor- commerce or alleging Rasputin, pov with the murder of it, unanimity ing” required jury as to which by poison five different manners and means— type committed— of criminal act defendant shooting, stabbing, drown ing, garroting, or "selling" "receiving”). Although the Su- gener Rasputin. ing could return preme Gipson’s Court notion of criticized Yussupov al verdict if it found that Prince conceptual groupings” “distinct in Schad as Rasputin by intentionally caused the death being conclusory “too to serve as a real test” means; unanimity require any of those deciding need unani- what facts “causing goes the act the death of ment upon, plurality mously agree did the Schad unani Rasputin,” while the need not be disagree underlying proposition with the preliminary issues—whether mous on the fact specific agree upon that all must Id.; by poisoning, garroting, etc. see it was statutory that the defendant was criminal act State, 256, 257-58 v. 823 S.W.2d Kitchens alleged to 501 U.S. at 634- have committed. (Tex.Crim.App.1991). 35, S.Ct. 111 2491. stated, case, already we In have 813, 1707, Francis, L.Ed.2d U.S. 119 S.Ct. 143 requirements for 28. 526 that the a Texas (1999). "are not identical to actus reus element.32 Richardson is mously specific pre- about which violations up make the ‘continuing series of viola- cisely case. analogous present ” 29 Richardson, pres- tions.’ as in the is also mistaken in its State case, enough jurors ent it is not that, argument second because the evi might beyond be convinced a reasonable dence shows the commission of two or doubt the defendant committed “a statutory violating more acts the same of others,” series of violations in concert with fense, required the defendant was to re it specific must be unanimous about each quest an if election he wanted the (ie., specific violation which criminal act— single reach a unanimous verdict on one sale) which specific drug that it found the act. There are three variations on this defendant had Supreme committed.30 The theme, permits but none of them a non- explained Court that a federal criminal First, unanimous verdict. the State could unanimously agree must on each “ele- put repetition on evidence of of the same convict, ment” of the crime order to but act, but with different results.33 agree need not on all “underlying Second, put the State could on evidence of brute facts make up particular [that] repetition of the same criminal act on dif element.”31 The crucial distinction is thus Third, ferent occasions.34 the State could between a fact that is a specific actus reus evidence, put element of the crime on it and one that is “but as did the means” acts, to the commission a specific different criminal each one of which 815, 29. Id. at 119 S.Ct. hogs, 1707. stole two does this show two different required units between which the State is 816, 30. Id. at 119 S.Ct. 1707. elect?”) § (discussing & 30.58 at 679 Coward State, 590, (1888), Tex.App. v. 7 S.W. 332 31. Id. at 119 S.Ct. 1707. As the Court in Appeals in which "the old Court of held ... explained: Richardson when defendant was tried for theft of robbery [w]here ... an element of is force one animal and the evidence showed the thief force, jurors might animals, or the threat of some took two had to conclude that the defendant used a knife to make clear which of the animals was the threat; create might others conclude he offense”) subject charged § & 30.57 n. gun. disagreement used a But that dis- State, (Supp.2004) (noting 17 at —a Cates v. agreement about means —would not matter 2001) (Tex.App.-Tyler 695 n. 5 long unanimously as all 12 con- multiple “where the State’s evidence showed proved cluded that the Government had by against sexual acts committed the accused element, necessary namely related children, two the need for an election was not defendant had threatened force. continuing eliminated course of con- Id. at 817. exception”). duct Id.; Reeder, see also United States v. example, allege 34.For the State could (1st Cir.1999) ("[wjhile F.3d fraudulently presented Hong agree must on all of the elements of an of- Truong's Nguyen, credit card Hanh and fense, need not on the means prove Monday, then that he did so on Tues- accomplished”). which all the elements were day, again Wednesday. and on See Dix & Daw- (discussing son, § 30.55 at 673 example, might charge For the State Crawford (Tex.Crim.App.1985), 696 S.W.2d 903 stealing defendant with a credit card from charged rape in which “the indictment aof Hong Truong put and evidence consisting child of a act of intercourse Hong Truong stole a credit card from with the named victim. The victim testified George Nguyen. Hanh See E. Drx & O. Robert to numerous acts of intercourse over several Dawson, Texas Criminal Practice and Procedure (2nd 2001) ("If years. § 30.51 at 664 Since each act of n. 1 ed. an intercourse could offense, alleges hog indictment theft of constitute the the State was proof by single shows that required proceed"). act the defendant to elect one on which to 748 specific

is a of a ic criminal act the defendant committed is penal violation statute any of such as credit card abuse. Under error.39 scenarios, the could these defendant

require specific to elect act the State which Brief, the attempts In its State conviction, upon it for relying was but by arguing ap Francis that distinguish Nonetheless, must need not. the election, an pellant request did not while single, verdict on reach a unanimous which the in Francis did an request defendant specific criminal act the commit- defendant una posits election. The State ted. if the nimity only is defendant required great similarity case bears present The requests separate an election between of State,35 in Francis in the scenario v. election, an request fenses. A for howev charged which the defendant was with one er, implementing prerequisite is not a indecency single in count of child and statutory Texas’ re constitutional present- The paragraph indictment.36 State quirement jury unanimity. An election separate ed of four acts of inde- evidence specific simply the number of limits cency, occurring each act at a different jury may during fenses consider that the the time and date. After defendant re- Appellant’s its failure to re deliberations. quested specific to elect the State which jury may an quest election means conviction, act sought to obtain the different criminal be instructed on several involving State chose two of them —one disjunctive, acts in but it will still be one touching the victim’s breasts and unanimously agree it must instructed that genitals.37 sepa- touching her Those are act.40 As on one the State specific rate criminal acts. These two out, correctly purposes one of the points disjunctive acts in the in a were is “to requiring an election ensure unani application paragraph,38 such verdicts, is, jurors mous all of the could have a non-unani- returned incident, agreeing specific that one which verdict, jurors find- mous with some charged in in the offense constituted ing that the defendant touched the child’s dictment, But the converse occurred!.]”41 concluding others that he breast while " request failure to an is true. The Francis, held genitals. touched her we not eliminate defendant’s election charge a non- does that a which allows for specif- right to a unanimous verdict.42 concerning unanimous verdict what (such Dawson, § 30.67 at (Tex.Crim.App.2000). 35. See Dix & 688-89 36 S.W.3d 40. “would not limit might 36. Id. of several acts or incidents consti- would, however, tute the crime. It make unanimously agree 37. must Id. clear that the constituting proved on one of them as Francis, paragraph 38. application offense”). in read, pertinent part: (Tex. S.W.3d Phillips you beyond a find from the evidence If 2004, n.p.h.). App.-Houston Dist.] [14th 1st doubt that or about the reasonable November, County, day in Tarrant (Wom Francis, at 127 n. 42. See 36 S.W.3d Defendant, Texas, Joseph Clayton Fran- ack, J., ("[w]e concurring) do not reverse for cis, engage contact did ... sexual necessary It is to discuss the election error. genitals touching breast or of ... requirement principles underlie the (emphasis original). at 36 S.W.3d principles one of those of election because charge”). the error violated juror point upon long There is one which we lant had committed as as each disagree with the of Ap Eastland Court In this agreed on the same criminal act. in peals. submitting The error here is not case, however, in- jury the was never disjunc the three offenses “in the formed, any in any way, by anyone, in failing tive.” The error is to instruct time, body that —as a collective was—it jury the that must be unanimous required to reach a unanimous verdict con- (or more) deciding which one of the three way cerning specific one criminal act. The disjunctively submitted offenses it found application paragraphs that these Indeed, appellant committed. applica out, jury were set could well have been paragraphs jury tion submitted to the believing only misled into its ultimate clearly this case would have been correct “guilty” of verdict need be unanimous. had each paragraph just included one addi circumstances, particular Under these we “unanimously,” tional word: such that all that, whole, jury conclude taken as a twelve immediately would realize charge contained error. they specific had to on one Having found charge, error paragraph which set out specific one crimi we turn to the question now of whether general nal act.44 The verdict form of appellant “egregious suffered harm” be- “guilty” guilty” or “not proper is also be object cause it does matter which criminal act cause he failed to credit card abuse the appel- charge. found Ngo, (stating you 129 S.W.3d at unanimously that “be- If find from the evi- possibility cause beyond [ap- of a dence a non-unanimous reasonable doubt that verdict, 'separate pellant] may day offenses’ on or about the 13th not be of Decem- ber, 2002, disjunctive”). unlawfully submitted to the did then and there statement, making knowingly receive intent to appeals the court of use Francis, holder, Hong cited to credit card card correctly but as the State owned out, points Truong, knowing the credit card had been requested defendant in Francis stolen; or that the State elect one offense to sub- Here, you unanimously If the evi- jury. find from mit to the did not so Therefore, beyond [ap- dence a reasonable doubt that request. any right he waived pellant] day on or about the Decem- 13th require pick just the State to one of the three ber, 2002, with intent to obtain benefit criminal acts to submit. The could be fraudulently, present [H]anh did use or charged disjunctively, long as as it was also Nguyen knowing a credit card the use was informed that it must be unanimous in decid- without the effective consent of the card- (or acts) ing which criminal act holder, Hong Truong, namely without con- card, stealing receiving the credit committed— a kind, knowing sent of card, fraudulently present- stolen credit or credit card had not been to the de- issued ing it. fendant, you [appellant] guilty then will find in the indictment. Thus, clearly appli- correct version of the course, added). is, (Emphasis There noth- paragraphs cation would have read: statutes, Constitution, ing in the Texas or case Now, you unanimously if find from the requires law that to contain the beyond evidence a reasonable doubt that explicit words “unanimous” or "unanimous- [appellant] day on or about the th ly.” explicitly require But Texas law does December, 2002, did then and there unlaw- jury’s be addi- unanimous. The fully, intentionally knowingly or steal a "unanimously” tion of the word before the holder, Hong owned card the card description of each distinct criminal act in the Truong, deprive merely way implement with intent to application cardhold- is property legal requirement. certainly er of the and without the effective We do not cardholder; suggest only way. consent of the that it is “egregious Appellant defendant, B. that way, suffered Second the on or repeatedly County, the about in Harris harm” when was December Texas, to deprive that it need not a unani- received with intent told return Hong of Truong. verdict. without the consent mous way That’s can do it. one we standard, Under the Almanza defendant, way, And the third on or the that a record must show defendant has 13th, County, about in Harris Decémber actual, merely suffered rather than theo Texas, intent to obtain fraudulent with retical, harm from instruction error.45 presented benefit used or card credit egregious Errors that result harm are Nguyen to Hanh without con- Mr. the very those that affect “the of the basis Truong. sent Hong of Ms. Does that case,” “deprive the defendant of a valuable everybody? make to sense There’s sev- right,” “vitally affect a defensive theo can ways happen. 46 eral different this ry.” Appellant argues that he suffered that Who in the first row does not make faulty from the actual harm instruc sense to? was, fact, tion that deprived and he of thing important this is that his to a valuable up end on the you sitting who verdict. if of jury panel like he stole the credit feel appeals egre The court of found it, you card and used six think that of 1) gious under error Almanza because: you and three he received it think of the jury charge permitted a non-unani it, presented matter it doesn’t which one 2) verdict; during its closing argu mous you can be a think he did. It mix and ment, forthrightly the State told the match, you one believe. whichever that it need not be unanimous in its verdict Everyone in the first row (as 3) I quoted supra); in Part and “there that’s Because that’s law. okay? the fact, were contested issues trial.”47 added). (emphasis more.48 there was law; But that that is the is not the error beginning the of voir

Near the State’s Then, during the voir case. defense dire, jurors: told the prosecutor the dire, trying while the defense was to ex- plain (erroneously) that the must State So, going explain ways I’m to the three acts, the prove prosecu- all three alleged going I’m we’ve objected, judge tor the trial told the and prove in this That the

intend case: jurors: defendant, Ngo, Mr. on or about Decem- 13th, County, Texas, ways alleged that the of- in Harris inten- There’s three ber fense committed. The State tionally knowingly stole a credit can be satisfaction, of deprive your must one prove, card with intent without them; however, in the Hong Truong. of That’s one of consent number course way proof, may prove can do it. of the State we State, Almanza, (Tex. to determine whether the Dickey 45. v. S.W.3d 48.Under State, egregious was error so defendant Crim.App.1999) (citing Arline v. trial, reviewing impartial denied a fair and (Tex.Crim.App.1986)). S.W.2d 1) court examine: entire should evidence; 3) 2) charge; of the the state 922 S.W.2d at 171. Hutch counsel; 4) any arguments other rele- record. 686 S.W.2d vant information Ngo, S.W.3d at 201-02. at 171. occasions, by the told, twice tively on three part one to the satisfaction of judge, trial once prosecutor and one to the jury, another satisfaction of return a unanimous ver- others, it need not one to the the third satisfaction jury that “a mix and told the you if dict. Both part jury, but another upon some guilt based match” verdict guilty, you defendant must found the believing appellant stole proved has believe State card, believing he received a stolen others entirety. in its paragraphs three card, believing that and still others Thus, judge prosecu- the trial and the both one, “the fraudulently presented was very begin- the law at the tion misstated law.”51 very the case and at the end.49 ning of Furthermore, was contest- the evidence an instance of a This is not com- testified and denied important an ed as simply missing which is any one of the three offenses. “unanimously”—which mitting reasonable word — And, theory of the evidence under no jurors infer from the context of the might committed appellant have from comments of the this could entire or by burglarizing Ms. legal original both the theft emphasizing the correct advocates Here, and have received jury Truong’s apartment was affirma- principles.50 convicting object defendant for “one or counsel did not to these choice” of Defense 49. drug prose- deal- misstatements of the law either the the other ... or both” instances 78, 82, judge. ing); Estorga, cutor or trial The record shows that Colorado v. 200 Colo. (en banc) (de- 520, (Colo.1980) prosecutor judge copy handed the trial 612 P.2d Apparently of a case from this Court. all verdict violated fendant’s to unanimous attorney, prosecutor, three —the defense evidence of more than one where state offered judge -innocently, mistakenly, but alleged believed assault on different occasions sexual — opinion jury's jury that this Court’s that a "mix it could find and trial court instructed and match” nonunanimous verdict on the evidence showed that defendant if "the committing specific "manner and means” of time within the crime had occurred (e.g., causing per- years filing one criminal act prior of the informa- States, 604, tion”); by strangling, shooting, poisoning, son's death v. United 541 A.2d Horton (defendant’s right garroting) applied (D.C.Ct.App.1988) also to a "mix and 610-11 concerning match” nonunanimous verdict verdict violated when dif- to unanimous supported different criminal acts which violate the same could have ferent factual scenarios Thus, statutory provision. appel- all three acted in conviction and verdict on assault complete good faith when each either unin- "infer from the verdicts late court could not object agree- tentionally committed error or failed that all the were in themselves appellant’s specific to the error. criminal ment as to Mahoe, 284, acts”); Hawaii v. 89 Hawai’i 287, 291, (Haw.1998) (right Johnson, P.2d Compare 193 F.3d Hoover v. Cir.1999) (5th (when violated when defen- prose- 367-68 both state residence, correctly dant made two distinct entries into attorney ex- cutor and defense rely entry unanimity jury, prosecution did not elect which plained law habe- Texas conviction, given specific petitioner’s federal constitutional claim on for unanimity guarantee jury requirement did not instruction of instructions Scott, act); unanimity rejected). underlying Illinois v. 750, 612 N.E.2d Ill.App.3d 183 Ill.Dec. 7, 9, (right (Ill.Ct.App.1993) to unanimous See, e.g., Castillo v. 734 N.E.2d charged (trial when defendant verdict violated (Ind.App.2000) court's failure 304-305 delivery a controlled sub- three counts of unanimity requirement to instruct only included stance and verdict form State evidence that defendant when offered allowing guilt delivery, jurors to find "dealing count of cocaine” of- had committed same agreeing upon which count he without twice was reversible error when both fense guilty). prosecutor jury it had "a trial court and told J., WOMACK, a concurring opinion from someone who filed stolen credit cards else MEYERS, J., joined. in which burglary. had committed the These two mutually par- in this offenses are exclusive HERVEY, J., dissenting opinion filed a single juror If ticular context. even KEASLER, J., joined. in which original was not the believed thief, that he had received but did believe KELLER, P.J., dissented without “Mike,” the stolen credit card from opinion. could not have been a unanimous verdict. WOMACK, J., concurring in which sum, this is an instance in which the MEYERS, J., joined. not correct- original jury charge error was join opinion I the Court’s with the un- or ameliorated in another portion

ed finding “egregious derstanding its instead, by it the charge; compounded was finding harm” in this like our of una- misleading concerning statement State,1 harm” in Francis v. is based “some jury charge, in the nimity that was set out on more than the mere use of the word by of as well as the affirmative statements charge. “or” in the judge prosecutor the trial both jury indeed return a non-unani- the could of the court Three of the six members And, given mous verdict. the state of the in Francis who found the error be evidence, appeals— we—like the court of recognized “strange con- reversible was, in jury determine that cannot text” in which it occurred: fact, finding appellant guilty in unanimous indictment general, one-paragraph offense. specific of one credit-card-abuse multiple-offense to a that was ill-suited appellant’s could have found Some trial; conjunctive an in the indictment allega- defense to one or more of the three disjunctive; have that could been another one persuasive finding tions while offenses, multiple none of evidence unpersuasive. We therefore conjunctive were described which statutory appellant’s constitutional and requests for the pleading; two denied jury verdict was vio- right to unanimous State to elect the incident which egregious lated and this violation caused rely; incorrect deci- would the State’s right impartial a fair and harm to his when it had rely sion to on two incidents judgment one; of the only pleaded trial.52 We affirm the and the erroneous to authorize the to convict appeals. court of decision State, 622, 52. See Clear v. knowledge property when de- 624 was stolen 2002, (find- pet.) (Tex.App.-Corpus knowledge Christi no contested issue fendant’s sole right Horton, ing egregious to defendant's to a trial); harm see 541 A.2d at 611-12 also jury charge al- verdict when (although object lack of defendant did not disjunctive upon submission lowed conviction charge, unanimity failure instruction in separate sexual assault of a child of three offenses); error, "plain give an instruction was such State, generally, 753 see v. Ruiz is, clearly prejudicial to substan- error so (egre- (Tex.Crim.App.1988) S.W.2d rights jeopardize tial of the defendant as to gious to instruct harm resulted from failure very integrity the trial'' fairness and disprove burden to sudden on State's been into believ- when could have misled passion offer evi- when defendant did not ing unanimous on which that it need not be State, defense); Bellamy dence other committed). two different assaults he (Tex.Crim.App.1987) 685-86 S.W.2d (plurality op.) (egregious from harm resulted (Tex.Cr.App.2000). 1. 36 S.W.3d presumption of erroneous instruction on on a in- could have been based either of two offenses when in only alleged, one.2 three pled split dictment vote. The State acts, separate separate paragraphs, case also was sur- this as three have been that could errors, opinion as the court’s rounded Ngo v. offenses. See prosecutor’s incorrect points out: PD- (Tex.Cr.App. No. S.W.3d law does statement in voir dire that the date) (three 0504-04, appli- verdict, this the trial delivered require a unanimous jury charge permit- same making court’s a statement cation paragraphs dire, prosecutor’s effect in voir and the appellant if some of ted to convict wrong argument.3 law in card, reiteration the credit jurors found that he stole he received a stolen others believed It could be said of both Francis and card, that he thought and still others that, by failing to cure the cumulative case it). fraudulently presented missteps, the courts’ effect of series step the ultimate charges contained Supreme implicates This scenario from the appear[ make “it record ] v. Arizona1 and Court’s decision Schad impartial defendant has not had a fair an in Francis v. State.2 this Court’s decision meaning trial” of Article 36.19. within however, not, implicate appellant’s It does to a unanimous HERVEY, J., state constitutional dissenting in which J., KEASLER, joined. Rather, implicates it the jury verdict. in process] limits defin- “permissible [due respectfully I dissent. In this a conduct, in the ing criminal as reflected jury unanimously appellant convicted jurors applying [appli- the instructions to single credit card abuse offense. The jury una- not one of paragraphs], cation that appellant’s Court decides state consti- Schad, 631, at nimity.” See U.S. jury tutional And, appear it would that jury’s was violated because the unanimous S.Ct. 2491.3 id., 125, assuming requirement (concurring opinion). 2. See at 127 raised. Even unanimity arguendo, assumption jury ante, at See Part II. B. address the issue of what the would fail to jury about. Petitioner’s must be unanimous 1. 501 U.S. 111 S.Ct. 115 L.Ed.2d deciding jury in that the was unanimous (1991). what, law, proved it State had under state prove: petitioner murdered ei- had to (Tex.Cr.App.2000). 2. 36 S.W.3d 121 premeditation course of ther or in the committing robbery. question The still Schad, 630-31, at In 501 U.S. 111 S.Ct. constitutionally it was ac- remains whether Supreme the Court described the issue jurors ceptable permit the to reach one following manner: any verdict based on combination contention [first- Petitioner’s first is his was, jury findings. alternative If it then the degree conviction under instruc- murder] verdict, reaching and in was unanimous jury require did not tions that petitioner’s proposed unanimity rule would pre- on one of the alternative theories not, help If it was and the him. felony murder is unconstitu- meditated findings premeditated may not combine urges us to omitted]. tional. He [Footnote murder, felony petitioner's convic- then Sixth, by holding this case decide proposed even without his tion will fall Eighth, re- and Fourteenth Amendments rule, the instructions allowed because quire juiy capital a unanimous in state cases, the forbidden combination. where lesser as distinct from those words, challenge petitioner’s real In other penalties imposed. [Citations omitted]. are so, however, first-de- characterization of is to Arizona’s We to do because the decline gree single crime as to which suggested reasoning beg question murder as a would (even though all applica- three acts mitted in separate two incidents.” See Francis, paragraphs morally equivalent),4 (Womack, J., tion are at 121 S.W.3d permissible process may those due limits concurring). single application para have been exceeded this case5 unless graph presenting separate two offenses in was instructed that it had to presented Francis a risk that the defen unanimously agree on least one of the dant could have been convicted either of application paragraphs before it could con- these two offenses submitted in appellant. vict single application paragraph even though was not unanimous. See The Court decides that this could have id. present This case does not that situa been accomplished inserting the word tion. “unanimously” application into each para-

graph. Ngo, Op. See at 749 (application Here, appellant failed to alert trial paragraphs would have been correct had court to his unanimous verdict claim. each paragraph included the word “unani- object He also failed to statements But, mously”). instructed the prosecution and the trial court dur unanimously agree that it had to on a ing subject. voir dire on this This should verdict.6 This appli- instruction with each analysis not entitle to a harm paragraph disjunc- cation submitted in the that seeks to determine whether “the accomplished tive instructing the that was, fact, finding appel unanimous in it unanimously agree had to on at least one specific lant of one credit card abuse of the application paragraphs before it Ngo, Op. (deciding case.” See at 752 appellant. could convict “egregiously harmed” be addition, para the three cause cannot be determined whether application graphs arising jury unanimously agreed from one offense are what on one of the distinguishes application paragraphs). type this case from Francis which This is the a single application paragraph analysis apply involved au of harm that should had thorizing objected the defendant’s conviction for in appellant timely charge to the decency with if jury given opportunity a child the found that the trial court an to any charge. the defendant touched the victim’s “breast correct error in the See Al (Tex. State, genitals” or which the evidence showed manza v. 686 S.W.2d 171 (“some “referred to two com Cr.App.1984) (op. reh’g) offenses were on harm” any permit charging verdict need not be limited to one statu- "an that the indictment alternative, tory against argues Tuesday as which he defendant X on or Y assaulted either premeditated felony murder and equiva- mur- Wednesday, despite the 'moral separate jury der are as acts”); crimes to which the Ngo, Op. lence’ of those two at 745 n. separate 22; Francis, must return verdicts. The issue in (jury charge at 125 S.W.3d case, then, permissible this is one of permitted based on conviction for an offense conduct, defining limits in as re- times). separate acts at different jurors applying flected in the instructions to definitions, jury unanimity. not one of jury charge 6.The stated: Schad, 643-45, room, you jury you 4. See 501 U.S. at 111 S.Ct. After retire to the (“moral disparity” your your between different should select one of members as charge satisfy duty preside means in to rea ele- mens Foreman. It is or her to at his deliberations, present your you, ment of offense could federal vote with and when violation). process you unanimously agreed upon constitutional due have a ver- dict, by using certify your to to Schad, sign- appropriate hereto and 5. See U.S. at 111 S.Ct. 2491 form attached J., (Scalia, (due concurring) process ing would the same as Foreman. jury’s ac actually the basis for analysis applies jury charge [is] to error tion”). apply I would This is how timely objection, “egregious subject is to where analysis in this case to er harm analysis applies harm” trial court into lead the objection); may helped have subject timely to ror that is not that he (Tex.Cr. affirmatively stated error when v. 966 S.W.2d Posey charge. objection no (discussing requir reasons for had App.1998) object). ing party timely opinion, the Court In footnote 52 of its Ap- of in cites a District of Columbia Court Both harm standards set out Alman- its decision that the peals support harm case to require degree za that “the actual unanimity instruction con- special lack of a assayed light of the entire must be evidence, Ngo, Op. harm. See including egregious of the stituted charge, the state States, citing 752 n. 52 Horton United weight proba- the contested issues and Horton evidence, (D.C.Ct.App.1988). 541 A.2d 604 argument tive of counsel analysis to error” harm applied “plain information the rec- any other relevant id.; in the failure to submit unpreserved trial a whole.” See error ord of the unanimity instruction. See Hor- special at 60 n. Posey, Applying ton, (unpreserved 541 A.2d at 611 analytical framework to this is requires only upon reversal appel- did not believe error evident that is, error, that error so testimony showing plain named “a lant’s someone that, rights of clearly prejudicial him to substantial gave “Mike” the credit cards very jeopardize as to manager’s in direct conflict with the bar the defendant trial”). testimony, integrity fairness and attempt did not use any buy these credit cards beer. See Horton, however, from distinguishable is Ngo, Op. at 742. Had the believed respects. important this case in several appellant, acquitted it would have him. At convictions involved three Horton then, very least the record this case (where jury may possible it was that the shows had have believed unanimous on one of not have been buy appellant attempted to beer convictions) while this case involves these belong a credit card that did not to him Horton, A.2d only one conviction. See (which application is covered the third an ele at 605-06. Horton also involved paragraph). id. See sepa juror confusion inherent ment record, alleged separate I to acts.

Based on this state of the rate defenses Horton, 606-08, (right at “egre 541 A.2d would decide See jury clearly prejudiced by by any to unanimous giously harmed” error defenses given could have confusion inherent charge because the essentially This case separate gunshots). appellant’s acquitted effect to defense and received (appellant one defense given, him the instructions involves under a credit card which support at least from “Mike” evidence is sufficient used) applica all applicable to paragraph. Gon never application the third Cf. (Tex.Cr. v. See Shivers United paragraphs. tion zalez v. States, (D.C.Ct.App A.2d App.2000) (general substantive constitu .1987) in Horton (distinguishing situation “a general [is] tional rule is that another finding, and not as legally supportable on this basis long [is] valid so confusion, prob source of grounds possible on one of the submitted —even sharply different de with distinct and [gives] no assurance that lem though fenses). one, rather than an invalid ground, valid notes that the District of

Shivers also practice is more

Columbia “somewhat “apparent prevailing than

stringent” practice in the federal

[plain error] Shivers, 7,n.

courts.” See 533 A.2d at 261 Shivers, According n. 13. in the fed- apparent prevailing practice ‘plain

eral “is to find no error’ so courts

long as evidence as to each incident is

sufficiently strong to defeat a motion for a of not as to that

directed verdict Shivers, at 261 n.

incident.” See 533 A.2d Also, Shivers, according the “federal general unanimity

courts consider a in-

struction as the one in this [such case]

sufficient to insure a unanimous verdict

‘except complexity in cases where the gen-

the evidence or other factors create a ” danger uine confusion.’ See Shiv-

ers, relatively 533 A.2d at 263 n. 13. This

simple genuine case did not create dan-

ger confusion. respectfully

I dissent. KEETER, Appellant, Russell

Jackie of Texas. STATE

No. PD-1012-03. Appeals of Criminal of Texas.

Court

April

Case Details

Case Name: Ngo v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Mar 16, 2005

Citation: 175 S.W.3d 738

Docket Number: PD-0504-04

Court Abbreviation: Tex. Crim. App.