Ngo, Thanh Cuong ( 2005 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

---

PD-0504-04

---

THANH CUONG NGO, Appellant

v.

THE STATE OF TEXAS

---

ON DISCRETIONARY REVIEW FROM THE ELEVENTH COURT OF APPEALS HARRIS COUNTY

---

Womack, J., filed a concurring opinion, in which Meyers, J., joined.

I join the Court's opinion with the understanding that its finding of "egregious harm"in this case, like our finding of "some harm" in Francis v. State, ⁽¹⁾ is based on more than the mere use of the word "or" in the charge.

Three of the six members of the court who found the error in Francis to be reversible recognized the "strange context" in which it occurred:

a general, one-paragraph indictment that was ill-suited to a multiple-offense trial; an indictment in the conjunctive that could have been in the disjunctive; evidence of multiple offenses, none of which were described by the conjunctive pleading; two denied requests for the State to elect the incident on which it would rely; the State's incorrect decision to rely on two incidents when it had only pleaded one; and the erroneous decision to authorize the jury to convict for either of two offenses when the indictment pled only one. ⁽²⁾

The charge in this case also was surrounded by errors, as the court's opinion points out: the prosecutor's incorrect statement in voir dire that the law does not require a unanimous verdict, the trial court's making a statement to the same effect in voir dire, and the prosecutor's reiteration of the wrong law in argument. ⁽³⁾

It could be said of both Francis and this case that, by failing to cure the cumulative effect of a series of missteps, the courts' charges contained the ultimate step that make "it appear[] from the record that the defendant has not had a fair an impartial trial" within the meaning of Article 36.19.

En banc.

Filed March 16, 2005.

Publish.

1. 36 S.W.3d 121 (Tex. Cr. App. 2000).

2.

See id., 125, at 127 (concurring opinion).

3.

See ante, at Part II. B.