No. 01-14-00772-CR

In the 

Court of Appeals 

For the 

First Judicial District of Texas 

At Houston 



No. 1384675 

In the 209th District Court of

Harris County, Texas 



THANH KIM HOANG

Appellant 

v. 

THE STATE OF TEXAS

Appellee



STATE’S APPELLATE BRIEF



DEVON ANDERSON

District Attorney 

Harris County, Texas 

CARLY DESSAUER

Assistant District Attorney 

NATHAN MOSS

Assistant District Attorney 

Harris County, Texas 

1201 Franklin, Suite 600 

Houston, Texas 77002

Tel.: 713/755-5826 

Fax No.: 713/755-5809 

ORAL ARGUMENT NOT REQUESTED 

ACCEPTED

01-14-00722-CR

FIRST COURT OF APPEALS

HOUSTON, TEXAS

6/25/2015 12:22:22 PM

CHRISTOPHER PRINE

CLERK

 FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 6/25/2015 12:22:22 PM CHRISTOPHER A. PRINE Clerk
ii

STATEMENT REGARDING ORAL ARGUMENT

Pursuant to Texas Rule of Appellate Procedure 9.4(g) and Texas Rule of 

Appellate Procedure 39.1, the State does not requests oral argument as the issue 

involved in this appeal can adequately be determined from the record and established 

law but wishes preserve its right to present oral argument if this Court desires to 

submit this case through oral argument.

IDENTIFICATION OF THE PARTIES

Pursuant to Texas Rule of Appellate Procedure 38.2(a)(1)(A), a complete list of 

the names of all interested parties is provided below.

Counsel for the State:

Devon Anderson  District Attorney of Harris County

Carly Dessauer  Assistant District Attorney on appeal

Nathan L. Moss  Assistant District Attorney at trial

David Bernard  Assistant District Attorney at trial

1201 Franklin Street, Suite 600, Houston, Texas 77002

Appellant or criminal defendant:

Thanh Kim Hoang

Counsel for Appellant:

Charles Hinton  Attorney on appeal

P.O. Box 53719, Houston, Texas 77052

Kurt B. Wentz  Attorney at trial

5629 FM 1960, Suite 115, Houston, Texas 77069

Trial Judge: 

Hon. Wayne Mallia
iii

TABLE OF CONTENTS

STATEMENT REGARDING ORAL ARGUMENT.................................................... ii

IDENTIFICATION OF THE PARTIES......................................................................... ii

TABLE OF AUTHORITIES ............................................................................................. iv

STATEMENT OF THE CASE .......................................................................................... 1

STATEMENT OF FACTS .................................................................................................. 1

SUMMARY OF THE ARGUMENT................................................................................. 3

REPLY TO APPELLANT’S POINT OF ERROR ......................................................... 3

I. The jury charge did not erroneously instruct the jury on the intent appellant 

needed to be a party to capital murder........................................................................... 3

a. The jury charge correctly required that the jury only convict appellant as 

a party to capital murder if it found that he had the intent to promote or 

assist Bui in killing Tu................................................................................................. 6

b. Assuming for the sake of argument that the jury charge was erroneous, 

appellant was not egregiously harmed by the instruction. ................................... 10

CONCLUSION ................................................................................................................... 13

CERTIFICATE OF COMPLIANCE .............................................................................. 14

CERTIFICATE OF SERVICE......................................................................................... 15

APPENDIX.......................................................................................................................... 16
iv

TABLE OF AUTHORITIES

CASES

Almanza v. State, 

686 S.W.2d 157 (Tex. Crim. App. 1984)...................................................................4, 10

Holford v. State, 

177 S.W.3d 454 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d) ......................9, 10

Nelms v. State, 

No. 01-13-00689-CR, 2014 WL 3738065 

(Tex. App.—Houston [1st Dist.] July 29, 2014, pet. ref’d) 

(mem. op., not designated for publication)................................................................. 7, 8

Ngo v. State, 

175 S.W.3d 738 (Tex. Crim. App. 2005)......................................................................... 4

Vasquez v. State, 

389 S.W.3d 361 (Tex. Crim. App. 2012)...................................................... 4, 5, 7, 8, 12

STATUTES

TEX. CODE CRIM. PROC. ANN. art. 36.14 (West 2007)...................................................... 5

TEX. PENAL CODE ANN. §7.01(a) (West 2011) .................................................................. 5

TEX. PENAL CODE ANN. §7.02(a)(2) (West 2011).............................................................. 5

TEX. PENAL CODE ANN. §19.03(a)(2) (West Supp. 2014)................................................. 5

TEX. PENAL CODE ANN. §29.02(a) (West 2011) ................................................................ 5

RULES

TEX. R. APP. P. 9.4(g)............................................................................................................. ii

TEX. R. APP. P. 9.4(i). ........................................................................................................... 14

TEX. R. APP. P. 38.2(a)(1)(A)................................................................................................. ii

TEX. R. APP. P. 39.1................................................................................................................ ii
1

TO THE HONORABLE COURT OF APPEALS:

STATEMENT OF THE CASE

Appellant was charged with capital murder (CR at 11). Appellant entered a 

plea of not guilty and request a jury trial to determine guilt (CR at 96; 3 RR at 16). 

The jury found appellant guilty, and since the State did not seek the death penalty, the 

court assessed punishment at confinement for life without parole (CR at 112, 114; 5 

RR at 37, 40). The court certified appellant’s right to appeal, and appellant filed a 

timely notice of appeal (CR at 117-18). 

STATEMENT OF FACTS

Appellant and his co-defendant, Vu Bui, went to Tuan Tu’s game room and 

café, Café Chieu Tim (3 RR at 24; 4 RR at 29). The two other patrons present, 

brothers Nghiep and Johnny Le, were playing pool when they arrived (3 RR at 123, 

125; 4 RR at 13, 14; State’s Ex. 43). Both brothers noticed the men as they were 

strangers, and the brothers were used to seeing only regulars at the café (3 RR at 125; 

4 RR at 15-16). Indeed, Johnny was uncomfortable with them because, in addition to 

not knowing the men, they did not remove their jackets or sunglasses despite being 

inside and the weather being hot (3 RR at 126; State’s Ex. 43). Appellant and Bui sat 

down at a table and ordered iced coffee (3 RR at 126, 142; 4 RR at 16; State’s Ex. 43).1 

After about thirty minutes of sitting, smoking, and occasionally talking with Tu, 

 

1 Appellant’s DNA could not be excluded from DNA found at the scene on a pair of glasses, a glass, 

and a cigarette butt (3 RR at 39, 50; 4 RR at 66, 70; State’s 29, 58, 59). 
2

appellant and Bui walked up to the three men, and Bui pulled out a gun (3 RR at 127, 

148; 4 RR at 17, 18; State’s Ex. 43). 

Bui tapped the gun on Johnny’s shoulder as he was facing the pool table and 

was unaware of the unfolding robbery (3 RR at 129-30, 143). Appellant was at his 

side, ready to assist Bui in controlling the men (3 RR at 131). Bui instructed them to 

kneel, and appellant then told Johnny “to lay down” (3 RR at 130, 131, 149; 4 RR at 

17, 18). However, Tu, who had a concealed handgun, drew his weapon to defend 

himself and his business from appellant and Bui (3 RR at 69, 135). Tu and Bui 

exchanged gunfire (3 RR at 135, 136; State’s Ex. 43). Bui shot at Tu until his gun was 

empty, hitting Tu twice in the chest and killing him (4 RR at 52; State’s Ex. 43). 

Both Bui and appellant fled the scene (3 RR at 138). Appellant was later 

apprehended by police, but at the time of trial, Bui had not yet been apprehended (3 

RR at 79, 85).

The evidence presented at trial established that Bui, not appellant, had fired the 

fatal shots that hit Tu during their robbery, so the trial court instructed the jury that it 

could find appellant guilty of capital murder as a principle, party, or co-conspirator to 

the offense (CR at 97-103). APPENDIX. The court also instructed the jury on the 

lesser included offenses of felony murder and aggravated robbery (CR at 103-106). 

Appellant did not object to the charge at trial (4 RR at 101). 
3

SUMMARY OF THE ARGUMENT

The trial court did not err when it instructed the jury on appellant’s requisite 

mental state to be guilty as a party to capital murder as the charge required the jury to 

find that appellant had the intent to promote or assist Bui with the robbery in addition 

to the intent to solicit, encourage, direct, aid, or attempt to aid Bui in shooting and 

killing Tu. Appellant’s argument focuses on one portion of the jury charge and 

ignores that the charge as a whole correctly stated the law regarding party intent. 

Analyzed as a whole, the court did not err in its charge, and appellant’s sole point of 

error should be overruled.

REPLY TO APPELLANT’S POINT OF ERROR

I. The jury charge did not erroneously instruct the jury on the intent appellant 

needed to be a party to capital murder. 

In his sole point of error, appellant argues that the trial court erred in charging 

the jury on the law of parties when it instructed that before the jury could find 

appellant guilty of capital murder as a party, it “must find from the evidence beyond a 

reasonable doubt that [appellant] with intent to promote or assist in the commission 

of the offense of robbery, if any, solicited, encouraged, directed, aided, or attempted 

to aid Vu Bui in shooting Tuan Tu, if he did, with the intention of thereby killing 

Tuan Tu” (CR at 101). Appellant alleges that the instruction allowed the jury to find 

him guilty as a party if it only found that he had intent to promote or assist the 

robbery without also having the intent to promote or assist Tu’s murder. Appellant’s 
4

argument focuses on the phrase that instructed the jury that it must find that appellant 

had the “intent to promote or assist in the commission of the offense of robbery” to 

support his claim (CR at 101). However, as the language of the whole charge shows, 

the court did not misinform the jury on appellant’s requisite intent as a party to capital 

murder. The instruction, as a whole, correctly required that the jury had to find that 

appellant had the intent to assist or promote Bui both in the robbery and in killing Tu. 

As such, the court’s instruction was not erroneous.

Standard of Review

A reviewing court’s first duty in analyzing a jury-charge issue is to decide 

whether error exists. Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). When 

examining the charge for possible error, reviewing courts “examine the charge as a 

whole instead of a series of isolated and unrelated statements.” Vasquez v. State, 389 

S.W.3d 361, 366 (Tex. Crim. App. 2012) (quoting Dinkins v. State, 894 S.W.2d 330, 339 

(Tex. Crim. App. 1995)).

Only if the court finds error, it must then conduct a harm analysis depending 

on whether the appellant objected to the error. Ngo, 175 S.W.3d at 743. When a 

defendant does not object to the court’s charge, the reviewing court can only reverse 

if the defendant suffered egregious harm. Almanza v. State, 686 S.W.2d 157, 171 (Tex. 

Crim. App. 1984).
5

Applicable Law

A trial court must instruct the jury on the “law applicable to the case” when 

charging the jury. TEX. CODE CRIM. PROC. ANN. art. 36.14 (West 2007). “Because 

the charge is the instrument by which the jury convicts, [it] must contain an accurate 

statement of the law and must set out all the essential elements of the offense.”

Vasquez, 389 S.W.3d at 366 (quoting Dinkins, 894 S.W.2d at 339).

A person commits the offense of capital murder if he intentionally or 

knowingly causes the death of an individual in the course of committing or attempting 

to commit robbery. TEX. PENAL CODE ANN. §19.03(a)(2) (West Supp. 2014). A 

person commits robbery if, in the course of committing theft and with intent to 

obtain or maintain control of property, the person intentionally, knowingly, or 

recklessly causes or threatens bodily injury to another. TEX. PENAL CODE ANN. 

§29.02(a) (West 2011).

“A person is criminally responsible as a party to an offense if the offense is 

committed by his own conduct, by the conduct of another for which he is criminally 

responsible, or by both.” TEX. PENAL CODE ANN. §7.01(a) (West 2011). To be 

criminally responsible for an offense committed by the conduct of another, the 

person must act with the intent to promote or assist the commission of the offense by 

soliciting, encouraging, directing, aiding, or attempting to aid the other person to 

commit the offense. TEX. PENAL CODE ANN. §7.02(a)(2) (West 2011). 
6

Analysis

a. The jury charge correctly required that the jury only convict appellant as 

a party to capital murder if it found that he had the intent to promote or 

assist Bui in killing Tu. 

In its instruction, the trial court charged the jury that it could find appellant 

guilty as a principle, as a party, and as a co-conspirator to the offense of capital 

murder (CR at 97-103). APPENDIX. Regarding the law of parties, the court first 

defined criminal responsibility as a party for the jury:

A person is criminally responsible for an offense committed by 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 (CR at 100-01). 

The court then gave the jury an instruction involving the law of parties and appellant’s 

charged capital murder: 

Before you would be warranted in finding [appellant] guilty of capital 

murder, [... ] you must find from the evidence beyond a reasonable 

doubt that [appellant], with the intent to promote or assist in the 

commission of the offense of robbery, if any, solicited, encouraged, 

directed, aided, or attempted to aid Vu Bui in shooting Tuan Tu, if he 

did, with the intention of thereby killing Tuan Tu (CR at 101). 

Finally, the court gave the jury an application paragraph applying the law of parties to 

the facts of appellant’s charged capital murder: 

If you find from the evidence beyond a reasonable doubt that on or 

about the 8th day of February, 2013, in Harris County, Texas, Vu Bui, 

did then and there unlawfully, while in the course of committing or 

attempting to commit the robbery of Tuan Tu, intentionally cause the 

death of Tuan Tu by shooting Tuan Tu with a deadly weapon, namely a 

firearm, and [appellant], with the intent to promote or assist the 
7

commission of the offense, if any, solicited, encouraged, directed, aided 

or attempted to aid Vu Bui to commit the offense, if he did[...] then you

will find the defendant guilty of capital murder, as charged in the 

indictment (CR at 102-03).

As is evident from the charge as a whole, the trial court did not erroneously 

instruct the jury on the law of parties in a way that would have allowed the jury to 

convict appellant of capital murder if it only found that he had the intent to promote 

or assist the commission of the offense of robbery as appellant alleges on appeal. See 

Vasquez, 389 S.W.3d at 366 (requiring reviewing courts to review the jury charge as a 

whole). As the charge stated in the paragraph appellant claims to be erroneous, the 

jury could only find appellant guilty of capital murder if it found that appellant had 

both the “intent to promote or assist in the commission of the offense of robbery” and 

“solicited, encouraged, directed, aided, or attempted to aid Vu Bui in shooting Tuan 

Tu, if he did, with the intention of thereby killing Tuan Tu (CR at 101) (emphasis added). 

The charge did not omit the requisite intent to kill as appellant claims.

Indeed, the jury charge in appellant’s case is nearly identical to the charge 

recently analyzed by this Court in Nelms v. State. Nelms v. State, No. 01-13-00689-CR, 

2014 WL 3738065, at *2 (Tex. App.—Houston [1st Dist.] July 29, 2014, pet. ref’d) 

(mem. op., not designated for publication). Nelms, like appellant, was convicted of 

capital murder; however, the aggravating element of his offense was the offense of 

burglary of a habitation. Nelms, 2014 WL 3738065, at *2. Nelms, like appellant, 

complained that the jury charge erroneously allowed the jury to find him guilty as a 
8

party to capital murder if it found that he had the intent to be a party to the 

aggravating offense when it instructed the jury that “you must find from the evidence 

beyond a reasonable doubt that [Nelms], with the intent to promote or assist in the 

offense of burglary of habitation.” Nelms, 2014 WL 3738065, at *3 (italics in original). 

Nelms, like appellant, argued that the correct instruction should have told the jury that 

his intent to promote or assist should have been directed towards the offense of 

capital murder instead of his aggravating offense of burglary of a habitation. Nelms, 

2014 WL 3738065, at *3. However, appellant, like Nelms, failed to consider the 

charge as a whole when making his argument. Nelms, 2014 WL 3738065, at *3 (noting 

that jury charge also instructed the jury that it must find that Nelms “solicited, 

encouraged, directed, aided, or attempted to aid [Jones] in shooting [Nelson], if he 

did, with the intention of thereby killing [Nelson ]”) (italics in original). 

For the same reason that this Court rejected Nelms’ argument, this Court 

should likewise reject appellant’s identical argument after analyzing the charge as a 

whole. See Vasquez, 389 S.W.3d at 366. The court’s entire jury charge involving 

appellant’s guilt on theory of the law of parties correctly informed the jury that 

appellant needed the intent to promote or assist Bui with the robbery as well as the

intent to promote or assist Bui in killing Tu before it could find appellant guilty of 

capital murder as a party (CR at 101, 102-03). See Nelms, 2014 WL 3738065, at *3. 

The sentence that appellant focuses on in his argument does mention that appellant 

intend to promote or assist the offense of robbery, but the court’s instruction goes on 
9

to state that appellant also needed the intent to solicit, encourage, direct, aid, or 

attempt to aid Bui in shooting Tu to be criminally responsible as a party to capital 

murder (CR at 101). Additionally, the application paragraph set out similar language 

as the sentence appellant focuses on in his brief but does not designate the offense of 

robbery to be the offense appellant had to intent to commit (CR at 102-03). Instead, 

the court instructed the jury that it could find appellant guilty only if it found beyond 

a reasonable doubt that appellant intended “to promote or assist the commission of 

the offense” (CR at 102-03). 

In Holford v. State, this Court upheld the jury charge over Holford’s claim that 

the charge allowed the jury to convict him as a party to capital murder if he intended 

to aid only in the robbery when the application paragraph “cautioned the jury” that it 

must also find intent to kill. Holford v. State, 177 S.W.3d 454, 460, 461 (Tex. App.—

Houston [1st Dist.] 2005, pet. ref’d) (noting that the jury charge read: “Before you 

would be warranted in finding the defendant guilty of capital murder, ... you must find 

from the evidence beyond a reasonable doubt that the defendant, David Charles 

Holford, with the intent to promote or assist in the commission of the offense of robbery, if any, 

solicited, encouraged, directed, aided, or attempted to aid Harold Louis Vaughn in cutting or striking 

Trevor Cook, if he did, with the intention of thereby killing Trevor Cook”) (italics in original). 

In Holford, this Court noted that, when “read logically,” “the clause “solicited, 

encouraged, directed, aided or attempted to aid Harold Louis Vaughn to commit the 

offense” refers to the complainant’s murder. Holford, 177 S.W.3d at 461. The same 
10

logical reading applies to the party instruction in appellant’s charge in which the clause 

“solicited, encouraged, directed, aided, or attempted to aid Vu Bui in shooting Tuan 

Tu” refers to Tu’s murder (CR at 101).

Because the charge as a whole directed the jury that it needed to find that 

appellant had the intent to kill Tu before it could find him guilty as a party to capital 

murder, the court’s charge is not erroneous. Therefore, this Court should overrule 

appellant’s argument.

b. Assuming for the sake of argument that the jury charge was erroneous, 

appellant was not egregiously harmed by the instruction.

Assuming for the sake of argument that the trial court’s charge erroneously 

instructed the jury regarding the required intent appellant needed to be guilty of 

capital murder as a party, appellant’s conviction does not require reversal. Almanza, 

686 S.W.2d at 171 (requiring that the defendant who does not object to the court’s 

charge at trial to suffer egregious harm to obtain a reversal). Had the trial court’s 

charge on party intent been erroneous, appellant, who did not object to the court’s 

charge at trial, was not egregiously harmed by the jury instruction (4 RR at 101). 

Standard of Review

To determine whether a defendant has sustained egregious harm from a jury 

instruction, the reviewing court considers (1) the entire charge; (2) the state of the 

evidence, including contested issues; (3) arguments of counsel; and (4) any other 

relevant information. Holford, 177 S.W.3d at 461.
11

Analysis

The jury charge did not egregiously harm appellant because, not only did the 

charge correctly instruct the jury correctly on the law of parties, the court also 

instructed the jury that appellant could be guilt as the primary actor or as a 

conspirator to the offense. While the evidence would not have supported appellant’s 

conviction as a primary, the evidence proved beyond a reasonable doubt that 

appellant was guilty as a party as well as a co-conspirator, and the jury could have 

found him guilty under either theory. 

Eyewitness testimony, surveillance video, and DNA evidence put appellant at 

the scene of the offense (3 RR at 39, 50, 125-26; 4 RR at 13, 66, 70; State’s 29, 40; 43, 

58, 59). The evidence showed that appellant and Bui entered the café together and 

that they did not need to tell each other what they were doing when they initiated the 

robbery, inferring prior planning (3 RR at 123, 125, 127, 147-48; 4 RR at 18). The 

evidence established that appellant acted in concert with Bui by following him, ready 

to provide assistance when Bui threated Tu and the Le brothers with his loaded gun, 

and appellant instructed the robbery victims to comply with their demands (3 RR at 

129-31). Indeed, Johnny testified that when Bui placed his gun on his shoulder, 

appellant instructed him to lay down on the ground (3 RR at 149). Further, both Le 

Brothers testified that appellant was not surprised or afraid when Bui pulled out his 

gun (3 RR at 147, 149; 4 RR at 19, 20). 
12

The arguments of counsel also establish that appellant was not egregiously 

harmed by the trial court’s instruction as both the State and appellant’s statements to 

the jury agreed that the evidence only supported appellant’s guilt as a party or coconspirator and both discussed the requisite intent appellant needed to be a party to 

capital murder (5 RR at 5, 8, 9, 14, 25). See Vasquez, 389 S.W.3d at 371-72 (discussing 

how both the prosecutor and Vasquez discussed party liability in their closing 

arguments when holding the jury charge error harmless). Appellant’s argument 

pointed the jury to the lesser included offenses of felony murder and aggravated 

robbery because appellant claimed that the evidence did not support his intent to kill 

Tu (5 RR at 8, 9-10). Because the arguments of counsel reiterated to the jury that 

appellant needed to intend to kill Tu to be guilty as a party to capital murder, he was 

not egregiously harmed by the error, if any, in the jury charge. 

Indeed, the record, through the entire jury charge, the state of the evidence, 

and the arguments of counsel, supports that even if the trial court erred in its jury 

instruction on the intent needed for the jury to find appellant guilty as a party to 

capital murder, appellant was not egregiously harmed by the error. However, this 

Court does not need to depend upon an analysis of harm to uphold appellant’s 

conviction as the trial court did not err in its charge. Therefore, this Court should 

overrule appellant’s sole point of error.
13

CONCLUSION

Based on the arguments stated above, the State of Texas respectfully urges the 

Court to overrule appellant’s point of error and affirm his conviction.

DEVON ANDERSON

District Attorney

Harris County, Texas

/s/ Carly Dessauer

____________________________________________________________________________________________________________________________________________________________________________________

CARLY DESSAUER

Assistant District Attorney

Harris County, Texas

1201 Franklin, Suite 600

Houston, Texas 77002

(713) 755-5826

State Bar No. 24069083

dessauer_carly@dao.hctx.net

curry_alan@dao.hctx.net
14

CERTIFICATE OF COMPLIANCE

The undersigned attorney certifies that this computer-generated document has 

a word count of 3,238 words, based upon the representation provided by the word 

processing program that was used to create the document. TEX. R. APP. P. 9.4(i). 

/s/ Carly Dessauer

____________________________________________________________________________________________________________________________________________________________________________________

CARLY DESSAUER

Assistant District Attorney

Harris County, Texas

1201 Franklin, Suite 600

Houston, Texas 77002

(713) 755-5826

State Bar No. 24069083
15

CERTIFICATE OF SERVICE

The State will serve a copy of the foregoing instrument to appellant’s attorney 

though TexFile:

Charles Hinton

Attorney at Law

P.O. Box 53719

Houston, Texas 77052-3719

chashinton@sbcglobal.net

/s/ Carly Dessauer

____________________________________________________________________________________________________________________________________________________________________________________

CARLY DESSAUER

Assistant District Attorney

Harris County, Texas

1201 Franklin, Suite 600

Houston, Texas 77002

(713) 755-5826

State Bar No. 24069083

Date: June 25, 2015
16

APPENDIX
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In accordance with Texas Government Code 406.013 electronically transmitted authenticated



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please e-mail support@hcdistrictclerk.com

HARRIS COUNTY, TEXAS

Chris Daniel, DISTRICT CLERK

I, Chris Daniel, District Clerk of Harris 



County, Texas certify that this is a true and 



correct copy of the original record filed and or 



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copy, as it appears on this date. 



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this June 19, 2015