Khampheth Bounkhoun v. State

NO. 07-07-0129-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL C

NOVEMBER 5, 2007
______________________________

KHAMPHETH BOUNKHOUN,

Appellant

v.

THE STATE OF TEXAS,

Appellee

_________________________________

FROM THE 297TH DISTRICT COURT OF TARRANT COUNTY;

NO. 0978509D; HON. EVERETT YOUNG, PRESIDING
_______________________________

Memorandum Opinion
_________________________________

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.

Khampheth Bounkhoun appeals his conviction for murder by contending in four

issues that the evidence is legally and factually insufficient to sustain it, the trial court erred

in admitting two photographs of the victim, and the trial court should have granted him a

mistrial when the prosecutor commented on his right not to testify. We affirm the judgment

of the trial court.
 Issues 1 and 2 - Legal and Factual Sufficiency

Standard of Review

The standards by which we review the legal and factual sufficiency of the evidence

are found in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) and

Watson v. State, 204 S.W.3d 404 (Tex. Crim. App. 2006). We refer the parties to those

cases.

Application of Standard

Appellant argues that there was “mass confusion” in the parking lot where the

murder occurred and that no evidence clearly established him as the one who shot Vy

“Julie” Nguyen. Yet, one witness testified that immediately after hearing a gunshot, she

saw appellant pointing a black object that she believed to be a gun. Another witness

testified that appellant informed her that he had shot Julie. A third witness stated that he

had given appellant a handgun like that used to commit the murder. Finally, after the

shooting, evidence illustrated that appellant fled the state to the Carolinas. This is some

evidence upon which a rational jury could conclude, beyond reasonable doubt, that

appellant fired the bullet that killed Julie.

That various of the witnesses may have had grudges or may have initially lied to the

police raised issues of credibility. Nevertheless, it was for the jury to resolve those issues

and determine the weight to be accorded the prosecutor’s witnesses. Margraves v. State,

34 S.W.3d 912, 919 (Tex. Crim. App. 2000). So, these circumstances, when compared

to the entire record, do not undermine our confidence in the verdict. In sum, we find the

evidence both legally and factually sufficient to support the verdict.

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 Issue 3 - Admission of Photographs

In his third issue, appellant complains about the trial court’s decision to admit two

photographs over his Rule 403 objection. Both photographs showed the gunshot wound

to the head of the victim. We overrule the issue.

Standard of Review

Whether the trial court erred in overruling a Rule 403 objection depends upon

whether it abused its discretion, i.e. whether the decision fell outside the zone of

reasonable disagreement. Rayford v. State, 125 S.W.3d 521, 529 (Tex. Crim. App. 2003).

Next, a photograph is generally admissible if verbal testimony about the matter depicted

in the photos is admissible. Paredes v. State, 129 S.W.3d 530, 539 (Tex. Crim. App.

2004). So too may photographs of a murder victim be admissible to show the manner and

means of death, even if they merely corroborate other kinds of evidence. Moreno v. State,

1 S.W.3d 846, 857 (Tex. App.–Corpus Christi 1999, pet. ref’d). Finally, that a relevant

picture may be gruesome alone is not necessarily justification to exclude it. Sonnier v.

State, 913 S.W.2d 511, 519 (Tex. Crim. App. 1995).

Application of Standard

The two photos in question were only of the wound inflicted on the victim, not of her

body or her face. Thus, they were rather clinical in nature and relevant to her manner of

death. Furthermore, the medical examiner described in one of the photos the “keyhole”

pattern that occurs when a bullet strikes the skull. He also referred to the size of the

wound in his testimony. Thus, the pictures arguably explained aspects of the medical

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examiner’s testimony. Given this, we cannot say the trial court’s decision to admit them

fell outside the zone of reasonable disagreement.

Issue 4 - Motion for Mistrial

In his last issue, appellant argues that the trial court abused its discretion in failing

to grant his motion for mistrial after the State commented on his right not to testify. We

disagree and overrule the issue.

Standard of Review

We review the trial court’s ruling under the standard of abused discretion. Archie

v. State, 221 S.W.3d 695, 699 (Tex. Crim. App. 2007). Next, a mistrial is an extreme

remedy for prejudicial events. Ex parte Lewis, 219 S.W.3d 335, 351 n.133 (Tex. Crim.

App. 2007). Consequently, the denial of a motion for mistrial constitutes error only if the

instruction to disregard was inadequate to cure the prejudicial effect, if any, arising from

the misdeed. Wilkerson v. State, 881 S.W.2d 321, 327 (Tex. Crim. App. 1994).

Next, it is clear that a chance of prejudice arising from comments on post-arrest

silence may be cured by an instruction to disregard. See Waldo v. State, 746 S.W.2d 750,

754 (Tex. Crim. App. 1988); Dossett v. State, 216 S.W.3d 7, 32 (Tex. App.–San Antonio

2006, pet. ref’d); Ho v. State, 171 S.W.3d 295, 306 (Tex. App.–Houston [14th Dist.] 2005,

pet. ref’d). And, we presume the jury followed such an instruction. Wesbrook v. State, 29

S.W.3d 103, 116 (Tex. Crim. App. 2000).

Application of Standard

Here, the objectionable comment occurred when the State asked a police officer if

he had an opportunity to talk to appellant while transporting appellant back to Texas from

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North Carolina. The officer stated: “No . . . [w]e attempted to interview him there at the jail,

but he requested an attorney be present, so we stopped the interview.” Appellant objected

to the statement. After the objection was sustained, appellant sought an instruction to

disregard which instruction the trial court gave. However, it refused to grant the request

for a mistrial.

In answering the question propounded, the officer’s statement was somewhat non-

responsive. It went further than the scope of information directly sought by the query.

Moreover, the trial court instructed the jury “to disregard the last comment,” the comment

was not repeated, no reference was made to the comment during closing argument, and

the quantum of evidence depicting appellant’s guilt was quite high. Under these

circumstances, we conclude that reasonable minds could disagree on whether the

instruction cured any prejudice arising from the officer’s statement. In short, we do not

have before us offensive or flagrantly improper conduct of the type beyond cure. See

Perez v. State, 187 S.W.3d 110, 112-13 (Tex. App.–Waco 2006, no pet.) (finding an

instruction to disregard effective when the mistake was not repeated, the statement was

not calculated to inflame the minds of the jury, and it was not referenced in closing

argument). Thus, the decision to deny mistrial came within the zone of reasonable

disagreement.

Having overruled all of appellant’s issues, we affirm the judgment.

Per Curiam

Do not publish.

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