Chuong Duong Tong

Case information

• Name: Chuong Duong Tong
• TDCJ Number: 999260
• Date of Birth: 10/21/76
• Date received: 04/01/98
• Age (when received): 21
• Education level: 12 years
• County: Harris
• State: Texas
• Race/Gender: Asian male
• Hair color: Black
• Eye color: 147 Native County Native State
• Prior occupation: Vietnam Laborer
• Prior prison record: None
• Gender: Male
• Height/Weight: 147
• Date of offense: 04/06/97
• Age (at the offense): 20

The offence

On 04/04/1997, in Houston, Tong shot and killed an off-duty police officer during the robbery of a food store. Tong also took the officer's jewelry before fleeing the scene.

Victim

• Victim: Asian male (off-duty police officer)
• Victim count / additional named victims: The direct appeal opinion references two witnesses, Vincent and Hanah Lee, as victims of an unadjudicated extraneous burglary/aggravated robbery that Tong allegedly committed, and it references an additional 22-month-old daughter of the Lees as part of a home-invasion allegation.
• Victim Officer Trinh: Officer Trinh was working at his parents' convenience store when a man walked in and attempted to rob him. Officer Trinh was shot in the head and died at the scene.

Investigation

The jury selection issue described a mid-voir-dire change in the method of jury selection, which the appellant claimed prevented him from using peremptory challenges.

Trial

Capital murder conviction

Tong was convicted of capital murder in March, 1998. The conviction was under Tex. Penal Code Ann. 19.03(a).

Jury selection

In his first point of error, Tong complained that the trial judge abused discretion by changing the method of jury selection in the middle of voir dire. Tong asserted that this change prevented him from intelligently utilizing his peremptory challenges, thus denying him the effective assistance of counsel, due process of law, and due course of law.

Tong asserted that, at the beginning of trial, the judge assured him that "would be given as many peremptory challenges as he requested," and he relied on this promise in conducting voir dire. Tong contended that, as they were nearing the end of voir dire, the trial judge returned to "the old-fashioned way," but refused to restore any of his strikes, causing him to go from a position of having unlimited strikes to a position of having no strikes and forcing him to accept an undesirable juror.

The appellate court overruled the first point of error.

Punishment phase

The appellate opinion stated that, pursuant to the jury's answers to the special issues set forth in Texas Code of Criminal Procedure article 37.071 2(b) and 2(e), the trial judge sentenced Tong to death under Art. 37.071 2(g).

Anti-sympathy charge

In his fourth point of error, Tong argued that the capital punishment proceedings violated the Cruel and Unusual Punishment Clause under the Eighth and Fourteenth Amendments. Tong noted that the trial court instructed the jury that it could not be influenced by "sympathy" when answering the special issues. Tong argued that the "anti-sympathy" charge misled jurors into thinking that it would be improper for them to consider sympathy based on mitigating evidence.

The trial court instructed the jury that it was "not to be swayed by mere sentiment, conjecture, sympathy, passion, prejudice, public opinion or public feeling" in considering the evidence before answering Special Issue No. 2.

The appellate court overruled the fourth point of error.

Burden of proof instruction on unadjudicated offenses

In his fifth point of error, Tong argued that the trial court erred by refusing to instruct the jury that they could not consider unadjudicated offenses unless the State proved beyond a reasonable doubt that Tong committed those acts. The appellate court held that such an instruction was not required when special issues included an instruction on the State's burden of proof and overruled the fifth point of error.

Admission of unadjudicated extraneous offenses at punishment

In his seventh point of error, Tong argued that the admission of unadjudicated extraneous offenses at punishment violated the Fourteenth Amendment. The appellate court stated it had held that Article 37.071 allows admission of unadjudicated extraneous offenses at punishment and that the practice does not violate the Fourteenth Amendment, declined to overturn prior cases, and overruled the seventh point of error.

Per se bar to victim character/impact evidence

In his fifteenth point of error, Tong argued that the Eighth Amendment erects a per se bar to victim character/impact evidence. The appellate court declined to reconsider decisions including Mosley v. State and overruled the fifteenth point of error.

Mitigation issue waiver request

In his sixteenth point of error, Tong argued that he was entitled to a new trial on punishment so that his defense counsel could make the choice declared available in Mosley v. State—whether to waive the mitigation issue entirely to prevent the introduction of victim character/impact evidence. The appellate court held that Mosley did not create a new waiver rule, treated the claimed newly announced waiver choice as dicta, noted that the statement was made in connection with points concerning victim impact evidence and addressed admissibility of victim impact evidence rather than whether the special issue could be waived, and overruled the sixteenth point of error.

Effective assistance of counsel claims

The appellate court described the governing standard from Strickland v. Washington (1984) and noted adoption under Hernandez v. State. It stated that Tong had to prove both deficient performance and prejudice by a preponderance of the evidence.

Points of error two and three (failure to object at punishment stage)

Tong alleged ineffective assistance at punishment for failing to object to the State's arguments interpreting the mitigation instruction as limiting jurors to facts that reduced Tong's moral blameworthiness and interpreting instructions to prohibit any consideration of sympathy for Tong.

The appellate court held the punishment charge recitations of the law were proper and that the argument was a proper reiteration of the law; therefore defense counsel did not fall below an objective standard of reasonableness. The court overruled points of error two and three.

Point of error six (final argument and burden of proof on extraneous offenses)

Tong alleged ineffective assistance at punishment for failing to inform the jury that the burden of proof on the future dangerousness issue implicitly included proving beyond a reasonable doubt that Tong committed unadjudicated extraneous offenses, and for failing to inform the jury that the State had to meet this burden before the jury could use evidence of extraneous offenses in answering special issues. The appellate court held there was no such duty under law, citing that the jury was properly instructed regarding burden of proof on special issues and noting that it had held that a trial court does not err in failing to submit a separate instruction on the burden of proof on extraneous offenses. It overruled point of error six.

Point of error seventeen (victim testimony on victims not named in indictment)

Tong submitted that counsel was ineffective for failing to object to victim testimony concerning victims not named in the indictment. He complained about testimony of two witnesses, Vincent and Hanah Lee, who were victims of an unadjudicated extraneous burglary/aggravated robbery that Tong allegedly committed. The prosecutor elicited testimony from both Lees regarding the effect the event had on their lives.

The appellate court stated that impact testimony from victims of an extraneous offense was arguably objectionable and noted it was not victim impact evidence contemplated by Mosley and Payne. However, it held the record was silent as to why counsel failed to object, which was insufficient to overcome the presumption that counsel's actions were strategic. It overruled point of error seventeen.

Point of error eighteen (victim opinions and wish for death penalty)

Tong asserted ineffective assistance for failing to object to victim testimony in which the victims expressed their opinions of Tong and their wish that he receive the death penalty. The appellate court presumed counsel's actions were part of an overall strategic design without explanation and overruled point of error eighteen.

Motion for new trial

Points of error thirteen and fourteen (juror investigation after verdict)

In his thirteenth point of error, Tong argued the trial court denied effective assistance of counsel during his motion for new trial when it granted the State's motion to quash subpoenas for jurors who had declined to answer defense counsel's post-trial questions relating to their service.

In his fourteenth point, Tong contended the trial court denied effective assistance of counsel by issuing a blanket direction to jurors that they were under no obligation to answer questions regarding their service.

The appellate court referenced Jackson v. State, including the proposition that refusal by jurors after discharge to talk to counsel or to sign affidavits violates no statute and does not authorize reversal, and that no error occurs when jurors are informed they have no obligation to talk to defense counsel. It held that counsel had the right to pursue an investigation and that nothing prevented counsel from contacting jurors and attempting to elicit information; however, jurors were not obligated to cooperate. It overruled points of error thirteen and fourteen.

Direct appeal and constitutional challenges to Article 37.071

Points of error eight through twelve

Tong asserted multiple constitutional challenges to the mitigation special issue and rules under Article 37.071. The appellate court stated it had previously addressed and rejected these points and declined to revisit them.

• Point of error eight: mitigation special issue was unconstitutional because it omits a burden of proof (Art. 37.071 2(e)).
• Point of error nine: mitigation issue constitutionally infirm because meaningful appellate review of the jury's answer was impossible.
• Point of error ten: mitigation issue unconstitutional when read with Article 44.251 requiring sufficiency review of the mitigation issue.
• Point of error eleven: the "12-10" rule of Article 37.071 2(d)(2) and (f)(2) was unconstitutional.
• Point of error twelve: requested charge informing the jury that it would receive a life sentence should they fail to agree on any one punishment issue; the denial violated the Eighth Amendment.

All were overruled.

Outcome

The appellate court found no reversible error and affirmed the trial court’s judgment.

Timeline

• 04/04/1997 — In Houston, Tong shot and killed an off-duty police officer during the robbery of a food store; Tong took the officer's jewelry before fleeing the scene.
• 04/06/1997 — Date of offense listed as 04/06/97.
• March 1998 — Tong was convicted of capital murder under Tex. Penal Code Ann. 19.03(a).
• 04/01/1998 — Tong was sentenced to death on April 1, 1998.
• 04/13/2000 — Direct appeal opinion delivered by the Texas Court of Criminal Appeals.

Court and judges

• Court: IN THE COURT OF CRIMINAL APPEALS OF TEXAS
• Cause number: NO. 73,058
• Appellant: CHUONG DUONG TONG
• Appellee: THE STATE OF TEXAS
• Presiding author: Meyers, J.
• Justices joining the opinion: McCormick, P.J., Keller, Price, Holland, and Keasler
• Dissent: Johnson, J., filed a dissenting opinion in which Mansfield and Womack, J.J., joined.

Other details

• Co-defendants: None
• Sentence: Death
• Other reference to related incident facts (footnote material): During a home invasion, Tong allegedly shot Mr. and Mrs. Lee and their 22-month-old daughter.