PD-0377-15
COURT OF CRIMINAL APPEALS AUSTIN, TEXAS
Transmitted 4/17/2015 1:17:19 PM NO. PD-0377-15 Accepted 4/21/2015 1:09:02 PM _________________________________ ABEL ACOSTA CLERK
IN THE
COURT OF CRIMINAL APPEALS OF TEXAS
_________________________________
NAM BRYAN TRAN
VS.
THE STATE OF TEXAS
_________________________________
ON DISCRETIONARY REVIEW FROM THE COURT OF APPEALS FOR THE SIXTH JUDICIAL DISTRICT OF TEXAS AT TEXARKANA
CAUSE NUMBER 06-13-0087-CR
_________________________________
Appealed from the 371st District Court of Tarrant County
Cause Number 1277354D
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PETITION FOR DISCRETIONARY REVIEW
_________________________________
Randy Schaffer
State Bar No. 17724500
1301 McKinney, Suite 3100 April 21, 2015 April 21, 2015 Houston, Texas 77010
(713) 951-9555
(713) 951-9854 (facsimile)
noguilt@swbell.net
Attorney for Appellant
NAM BRYAN TRAN
IDENTITY OF PARTIES
Appellant: Nam Bryan Tran Inmate No. 1849011
Telford Unit
3899 State Hwy. 98
New Boston, Texas 75570
Trial Counsel: Jim Shaw Mary Young
James Renforth
916 W. Belknap
Fort Worth, Texas 76102
Appellate Counsel: Max Striker 3000 E. Loop 820
Fort Worth, Texas 76112
Trial Prosecutors: Keith Harris Timothy Bednarz
401 W. Belknap
Fort Worth, Texas 76102
Appellate Prosecutors: Charles Mallin Andy Porter
401 W. Belknap
Fort Worth, Texas 76102
Trial Judge: Mollee Westfall 401 W. Belknap
Fort Worth, Texas 76102
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SUBJECT INDEX
Page
STATEMENT REGARDING ORAL ARGUMENT .......................................... 1 STATEMENT OF THE CASE .............................................................................. 1 STATEMENT OF THE PROCEDURAL HISTORY ......................................... 1 GROUNDS FOR REVIEW ................................................................................... 2 GROUND ONE ...................................................................................................... 3
THE COURT OF APPEALS ERRED IN HOLDING THAT THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN ALLOWING THE PROSECUTOR TO QUESTION APPELLANT ABOUT ILLEGALLY CARRYING A GUN AS A CONVICTED FELON AND IN A PLACE LICENSED TO SELL ALCOHOLIC BEVERAGES.
GROUND TWO ..................................................................................................... 7
THE COURT OF APPEALS ERRED IN HOLDING THAT THE TRIAL COURT PROPERLY INSTRUCTED THE JURY ON THE DOCTRINE OF PROVOKING THE DIFFICULTY AS A LIMITATION ON THE RIGHT TO SELF-DEFENSE.
CONCLUSION ....................................................................................................... 11 CERTIFICATE OF SERVICE .............................................................................. 12 CERTIFICATE OF COMPLIANCE..................................................................... 12 APPENDIX ............................................................................................................. 13
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INDEX OF AUTHORITIES
Cases Page
Alexander v. State, 740 S.W.2d 749 (Tex. Crim. App. 1987).......................... 6
Johnson v. State, 649 S.W.2d 111 (Tex. App.—San Antonio 1983), aff’d on other grounds, 662 S.W.2d 368 (Tex. Crim. App. 1984) ..... 5
Mendoza v. State, 349 S.W.3d 273 (Tex. App.—Dallas 2011, pet. ref’d) ....... 10, 11 Stanley v. State, 625 S.W.2d 320 (Tex. Crim. App. 1981) .............................. 9 Tave v. State, 620 S.W.2d 604 (Tex. Crim. App. 1981) .................................. 9, 10 Theus v. State, 845 S.W.2d 874 (Tex. Crim. App. 1992)................................. 3 Rules
TEX. R. APP. P. 66.3(a) ...................................................................................... 7, 10 TEX. R. APP. P. 66.3(b) ...................................................................................... 7 TEX. R. APP. P. 66.3(c) ...................................................................................... 10
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STATEMENT REGARDING ORAL ARGUMENT Appellant does not request oral argument but will present it if the Court desires.
STATEMENT OF THE CASE
Several people were drinking at a club after a wedding. Austin Nguyen and appellant, both of whom were intoxicated, 1 were seated at a table when Nguyen, for no reason, “sucker punched” appellant, knocking him to the ground. 2 They fought, and appellant pulled out a gun and shot once in the air and several times in the direction of Nguyen, who was approaching him with a chair. Two of the shots were fatal. Appellant left the scene and was arrested about eight months later. The jury rejected self-defense and convicted him of murder.
STATEMENT OF THE PROCEDURAL HISTORY Appellant pled not guilty to murder (second offender) in cause number 1277354D in the 371st District Court of Tarrant County before the Honorable Mollee Westfall. A jury convicted him and assessed his punishment at 99 years in prison on April 8, 2013. Jim Shaw, assisted by Mary Young and James Renforth, represented him at trial.
The Sixth Court of Appeals affirmed appellant’s conviction in an 1 The pathologist testified that Nguyen had a blood alcohol content of 0.06 and enough cocaine in his system to suggest that he consumed a significant amount within a few hours of his death (5 R.R. 68-69).
2 A videotape of this assault was admitted in evidence (4 R.R. 72).
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unpublished opinion issued on March 4, 2014. This Court denied his untimely pro se motion for an extension of time to file a PDR in number PD-0616-14 on May 14, 2014. Tran v. State, 2014 WL 859674, No. 06-13-00087-CR (Tex. App.— Texarkana 2014, no pet.) (not designated for publication) (Appendix). Max Striker represented him in the court of appeals, and he represented himself in this Court.
This Court granted appellant the opportunity to file an out-of-time PDR on March 18, 2015. Ex parte Tran, No. WR-81,760-02 (Tex. Crim. App. 2015). It granted an extension of time to July 2, 2015, to file the PDR in number PD-0377- 15 on April 2, 2015.
GROUNDS FOR REVIEW
1. Whether the court of appeals erred in holding that the trial court did not abuse its discretion in allowing the prosecutor to question appellant about illegally carrying a gun as a convicted felon and in a place licensed to sell alcoholic beverages (6 R.R. 114-17).
2. Whether the court of appeals erred in holding that the trial court properly instructed the jury on the doctrine of provoking the difficulty as a limitation on the right to self-defense (C.R. 68-69; 6 R.R. 172-73).
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GROUND ONE
THE COURT OF APPEALS ERRED IN HOLDING THAT THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN ALLOWING THE PROSECUTOR TO QUESTION APPELLANT ABOUT ILLEGALLY CARRYING A GUN AS A CONVICTED FELON AND IN A PLACE LICENSED TO SELL ALCOHOLIC BEVERAGES.
Appellant testified on direct examination that he was sitting at a table in the club when Nguyen, whom he did not know, asked, “Is your name Birdie?” (6 R.R. 87-90). When he did not respond, Nguyen punched him for no reason, and he fell to the ground (6 R.R. 90-91, 96-97). Nguyen and other persons hit and kicked him (6 R.R. 91). He got up, scared and in a panic, and ran to the stage (6 R.R. 92). He pulled a gun and shot in the air as a “scare tactic” to get some “room” (6 R.R. 96). Nguyen ran at him with a chair (6 R.R. 97). Being outnumbered, and in fear of serious bodily injury and death, he fired shots, and Nguyen fell (6 R.R. 97, 99- 101).
The prosecutor elicited on cross-examination that appellant had been convicted of possession of more than four grams of methamphetamine in 2008 and less than one gram of a controlled substance in 2004 (6 R.R. 112-13). 3 The prosecutor asked, “You understand that as a convicted felon, you can’t own a gun,
3 Defense counsel did not attempt to exclude these prior convictions which were unrelated to appellant’s credibility, under Theus v. State, 845 S.W.2d 874, 880 (Tex. Crim. App. 1992).
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right?” (6 R.R. 114). The court overruled counsel’s relevancy objection and appellant answered yes. The court then conducted a hearing outside the presence of the jury. The prosecutor argued that testimony that appellant illegally possessed a gun as a convicted felon and that he knew that it was illegal to possess a gun in a club was relevant to the reasonableness of his self-defense claim (6 R.R. 114-16). Counsel responded that neither appellant’s felony conviction nor his illegal possession of the gun was relevant to whether he had a right to defend himself from an actual or apparent attack (6 R.R. 115-16). The court overruled the objection, observing that appellant’s knowledge that he was violating the law was relevant to his self-defense claim (6 R.R. 116-17). Appellant testified before the jury that he knew that it was illegal for a convicted felon to possess a gun but did not know that it was illegal to possess a gun inside a club (6 R.R. 117-18).
The prosecutor argued, in asking the jury to reject self-defense, “Why did he even have a gun there in the first place? What does that tell you about him? He’s a convicted felon. He has no business even having a gun. He has no business going into a bar where it’s illegal to possess a gun. There’s two violations right there” (6 R.R. 182).
Appellant contended on appeal that the trial court abused its discretion in allowing the prosecutor to question him about illegally possessing a gun as a convicted felon and in a place licensed to sell alcoholic beverages. The court of
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appeals, without analysis or citation to relevant authority, held that the trial court did not abuse its discretion because appellant’s “decision to bring a firearm into the club when he knew he was prohibited from owning such a weapon was relevant to the question of whether his conduct in shooting Nguyen was reasonable under the circumstances.” Tran, 2014 WL 859674 at *9.
The decision of the court of appeals conflicts in principle with Johnson v.
State, 649 S.W.2d 111 (Tex. App.—San Antonio 1983), aff’d on other grounds, 662 S.W.2d 368 (Tex. Crim. App. 1984). The defendant shot the complainant in a bar and was charged with attempted murder. The prosecutor elicited from the owner that the bar was licensed to sell beer. The prosecutor asked whether there was a sign in the bar that it was a felony to carry a weapon on the premises. The trial court sustained an objection, instructed the jury to disregard, but denied a motion for mistrial. Thereafter, the prosecutor asked the defendant over objection if he knew that, by entering the bar with a gun, he was violating the law by carrying a weapon on premises licensed to sell alcoholic beverages. The prosecutor argued during summation that the defendant, knowing that it was an offense, took a gun into licensed premises so he could shoot someone. The court of appeals held that the trial court erred in allowing cross-examination on this subject because there was no relationship between unlawfully carrying a gun on licensed premises and the charged offense of attempted murder. Id. at 118. The
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defendant was harmed because the prosecutor’s argument implied that he intentionally committed attempted murder because he intentionally committed the offense of carrying a weapon on licensed premises. Id; cf. Alexander v. State, 740 S.W.2d 749, 763-65 (Tex. Crim. App. 1987) (although defendant was properly impeached with felony convictions, reversible error to allow prosecutor to question him about making false statement about those convictions when he bought gun several months before charged capital murder).
Establishing that appellant knew that it is illegal for a convicted felon to possess a gun and for anyone to possess a gun in a place licensed to sell alcoholic beverages was irrelevant to whether appellant’s use of that gun to defend himself was lawful. If Nguyen unlawfully attacked appellant, causing him reasonably to fear serious bodily injury or death, he had a right to use deadly force to defend himself even if he illegally possessed the gun. Conversely, if he did not reasonably fear serious bodily injury or death, he did not have a right to use deadly force to defend himself even if he legally possessed the gun. There simply was no connection between his knowledge that he could not legally possess a gun as a convicted felon or in a place licensed to sell alcoholic beverages and whether his use of that gun to defend himself was lawful. Thus, the trial court abused its discretion in allowing the prosecutor to question him about these matters. The error was harmful in view of the prosecutor’s argument that appellant did not have
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a right to use the gun to defend himself because he violated the law by possessing it as a convicted felon and in a place licensed to sell alcoholic beverages. Discretionary review is required because the holding of the court of appeals conflicts in principle with Johnson (which it did not even mention) and this important issue of state law has not been, but should be, resolved by this Court. TEX. R. APP. P. 66.3(a) and (b).
GROUND TWO
THE COURT OF APPEALS ERRED IN HOLDING THAT THE TRIAL COURT PROPERLY INSTRUCTED THE JURY ON THE DOCTRINE OF PROVOKING THE DIFFICULTY AS A LIMITATION ON THE RIGHT TO SELF-DEFENSE.
The State relied on Kathy Nguyen, who was serving a six-year federal sentence for conspiracy to distribute ecstasy and marijuana, to testify about how the altercation started (4 R.R. 42-44, 79, 82-83).4 Kathy testified that appellant and Austin Nguyen were seated next to each other in the club (4 R.R. 52). Appellant was loud, banged a beer bottle on the table, and was told to “chill out” (4 R.R. 54-55). Appellant touched Nguyen on the shoulder (4 R.R. 56). Nguyen knocked appellant to the ground, and they started fighting (4 R.R. 57, 94).
Appellant testified that Nguyen, whom he did not know, asked, “Is your name Birdie?” (6 R.R. 90). When he did not respond, Nguyen punched him for no
4 Hoa Duong and Robert Dennie, the only other prosecution witnesses who were present when the altercation started, did not see how it started (3 R.R. 107-09, 205).
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reason, and he fell to the ground (6 R.R. 90-91, 96-97). Nguyen and other persons hit and kicked him (6 R.R. 91). He got up, scared and in a panic, and ran to the stage (6 R.R. 92). He pulled a gun and shot in the air as a “scare tactic” to get some “room” (6 R.R. 96). Nguyen ran at him with a chair (6 R.R. 97). Being outnumbered, and in fear of serious bodily injury and death, he fired shots, and Nguyen fell (6 R.R. 97, 99-101).
The court instructed the jury in the charge on self-defense (C.R. 66-68). It also instructed the jury on provoking the difficulty as a limitation on the right to self-defense (C.R. 68-69). Specifically, it instructed the jury to reject self-defense if it found beyond a reasonable doubt that, immediately before the difficulty, appellant said or did something with the intent to “produce the occasion for killing” Nguyen; that his words or acts “were reasonably calculated to, and did, provoke a difficulty”; that Nguyen attacked or appeared to attack him with deadly force; and that he killed Nguyen (C.R. 69).
The prosecutor argued during summation that the jury should reject self-
defense because appellant provoked the difficulty by pulling a gun to scare Nguyen rather than to protect himself (6 R.R. 199, 202). 5 Appellant contended on appeal that the trial court erred in instructing the jury on the doctrine of provoking the difficulty as a limitation on the right to self-
5 The prosecutor focused the jury on the wrong point in time. Nguyen’s assault of appellant at the table was the difficulty that ultimately resulted in the shooting.
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defense. The court of appeals observed that the interaction between appellant and Nguyen began when Nguyen asked if his name was Birdie. Tran, 2014 WL 859674 at *7. The video recording depicted appellant lean forward, put his arm on Nguyen’s shoulder, and say something. Id. In response, Nguyen immediately pushed appellant back, stood up, and punched him. Id. The court held, “Although Tran claims he cannot remember what he said to Nguyen that evidently provoked a quick and violent response, the jury was free to infer that the words Tran spoke were designed to provoke Nguyen. Given that Tran shot Nguyen less than one minute after these words were spoken, the jury could easily infer that Tran’s words were spoken with the intent to create a pretext for inflicting harm on Nguyen.” Id. The court disregarded well-settled precedent in holding that an instruction on provoking the difficulty was authorized based on inferences, rather than evidence, that appellant said something with the intent to provoke Nguyen to attack him with deadly force so he would have a pretext to kill Nguyen.
An instruction on provoking the difficulty that is not supported by the evidence constitutes an improper limitation on the right to act in self-defense. Stanley v. State, 625 S.W.2d 320, 321 (Tex. Crim. App. 1981). A provocation instruction is proper where the deceased made the first attack, but was induced to do so by words or acts of the defendant reasonably calculated and intended to provoke an attack so the defendant could kill him. Tave v. State, 620 S.W.2d 604,
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605-06 (Tex. Crim. App. 1981). A provocation instruction is improper where there was no evidence that the defendant’s words or acts were intended to provoke an attack so he could kill the deceased. Id. at 606.
The court of appeals speculated that appellant said something to Nguyen that provoked the initial attack and that appellant intended to provoke that attack so he could kill Nguyen. The jury cannot properly infer that the defendant made a provocative statement, much less that he did so with the intent to provoke an attack so he could kill the deceased. Discretionary review is required because the decision of the court of appeals conflicts with this Court’s well-settled precedent on the issue of whether the evidence raised provoking the difficulty. TEX. R. APP. P. 66.3(c).
The court of appeals also observed in dicta that, even if the provocation instruction were erroneous, appellant cannot show “some harm” because the charge contained an instruction that the right of self-defense would not be impaired if the jury found that he did not provoke the difficulty, and the prosecutor did not focus on provocation during summation. Tran, 2014 WL 859674 at *8. The harmless error determination conflicts in principle with Mendoza v. State, 349 S.W.3d 273 (Tex. App.—Dallas 2011, pet. ref’d), which held that an erroneous provocation instruction is harmful because it directs the jury not to consider self- defense at all if it finds there was provocation. Id. at 284. An erroneous
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provocation instruction is harmful if, in its absence, there was a chance that the jury would have found that the defendant acted in self-defense. Id. at 281-82. Furthermore, the prosecutor did argue during summation that the jury should reject self-defense because appellant provoked the difficulty (6 R.R. 199, 202).
The video recording demonstrates that Nguyen attacked appellant and started the fight. Absent the provocation instruction, there was a chance that the jury would have found that appellant acted in self-defense. Thus, the erroneous instruction resulted in “some harm.” Discretionary review also is required because the decision of the court of appeals conflicts in principle with Mendoza (which it did not even mention) on the issue of harm. TEX. R. APP. P. 66.3(a).
CONCLUSION
This Court should grant discretionary review to resolve these important questions of law.
Respectfully submitted,
/s/ Randy Schaffer
Randy Schaffer
State Bar No. 17724500
1301 McKinney, Suite 3100 Houston, Texas 77010
(713) 951-9555
(713) 951-9854 (facsimile)
noguilt@swbell.net (email)
Attorney for Appellant
NAM BRYAN TRAN
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CERTIFICATE OF SERVICE
I served a copy of this document on Charles Mallin and Andy Porter, assistant district attorneys for Tarrant County, 401 W. Belknap, Fort Worth, Texas 76102; and on Lisa McMinn, State Prosecuting Attorney, P.O. Box 12405, Capitol Station, Austin, Texas 78711, by United States mail, postage prepaid, on April 17, 2015.
/s/ Randy Schaffer
Randy Schaffer
CERTIFICATE OF COMPLIANCE The word count of the countable portions of this computer-generated document specified by Rule of Appellate Procedure 9.4(i), as shown by the representation provided by the word-processing program that was used to create the document, is 2,504 words. This document complies with the typeface requirements of Rule 9.4(e), as it is printed in a conventional 14-point typeface with footnotes in 12-point typeface.
/s/ Randy Schaffer
Randy Schaffer
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APPENDIX
Opinion of the Sixth Court of Appeals