TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-24-00490-CR
Yongyoon Kim, Appellant
v.
The State of Texas, Appellee
FROM THE 167TH DISTRICT COURT OF TRAVIS COUNTY NO. D-1-DC-23-900103, THE HONORABLE MELISSA YOUNG GOODWIN, JUDGE PRESIDING
MEMORANDUM OPINION
Appellant Yongyoon Kim 1 challenges his convictions for two counts of murder.
See Tex. Penal Code § 19.02(b). In three issues, he contends that the trial court abused its discretion when it excluded trial testimony that he asserts was relevant to his self-defense theory, that the State committed prosecutorial misconduct when the prosecutor made an “improper speaking objection and inflammatory closing arguments,” and that the trial court abused its discretion when it allowed his motion for new trial to be overruled by operation of law without a hearing. We affirm the trial court’s judgments of conviction.
1Evidence was presented at trial that Kim had legally changed his name to Paul Allen.
Both names were used throughout the trial. Because he refers to himself as “Yongyoon Kim, AKA Paul Allen” and “Mr. Kim” in his appellate brief, we will refer to him that way as well.
BACKGROUND
Officer Kyu An testified that he responded to a 911 call reporting the occurrence of gunshots in a parking lot that was surrounded by a shopping center, an apartment complex, and a school sports field. He found two deceased victims on the ground when he arrived. Officer An later identified the men as Nathan Limoge, who was living in his car in that parking lot, and Christopher Rivers. Officer An testified that he had prior experience with Rivers and testified that in his opinion he was “aggressive” and “assaultive” but that he had been able to deescalate him into compliance in the past.
Officer An testified that soon after he arrived at the scene, he was informed by dispatch that a person had called 911 and identified himself as the shooter and provided his location. That person was Kim. Officer An testified that he and three other officers took Kim into custody without incident and that Kim followed all commands given to him. Three 911 calls were admitted and played for the jury, one of which was the call Kim made. During the 911 call, Kim stated, “This is the fifth time I’ve been attacked. I knew this was going to happen. I just didn’t expect it to be today. Every other time I backed down. This time I said, ‘I will not.’” Kim clarified later in the call that the previous attacks were perpetrated by different individuals than the two he had shot. Officer An testified that after taking Kim into custody, he spoke with witnesses.
Multiple witnesses to the shooting testified. Evan Kelley testified that he was in his girlfriend’s apartment looking out the window when he saw Kim shoot Rivers. He testified that he did not see anyone other than Kim with a weapon. He testified that Rivers had packed up his belongings, had both hands on the handlebars of his bike, appeared to be preparing to leave, and was five to ten feet away from Kim when Kim shot him. Kelley testified that Rivers fell
3
from his bike and was propping himself up on the ground when Kim took a step closer to Rivers and shot him again. He then saw Kim walk around the car and heard additional gunshots.
Kim testified in his own defense. He testified that he felt unsafe in his apartment complex—which was the one next to the parking lot in which the shooting occurred—due to an increase in illegal activity committed by homeless individuals, mostly at the rear of the apartment complex. He testified that a couple of months before the shooting, he began to open-carry a revolver and was recruited into an unofficial neighborhood watch. He testified that Limoge had been living in his car in the shopping center parking lot for about three months. Kim testified that he had spoken to Limoge a few times and knew him by his reputation for “criminal activity.” He testified that he had not met Rivers until the day of the shooting.
Kim testified that on the day of the shooting, he was having a conversation with Limoge at his car about how the car repairs were going when Rivers interrupted their conversation and was “pretty hostile.” Kim testified that he and Rivers got into a shouting match. Kim testified that Rivers pulled out a knife, re-sheathed it, and threatened to throw it at Kim. Kim testified that Rivers started packing up his things and got on his bike. Kim testified that Rivers and Limoge threatened to rob him the next time they saw him and started whispering together. He believed they were planning to attack him. He testified that he did not think he could outrun them because he was disabled due to having bad knees. However, he testified that in the past he had run away from similar situations and explained that is what his comment to the 911 operator was referencing. He testified that Rivers charged him while still on the bike and that he shot Rivers. He testified that without looking, he swung his revolver and shot Limoge. He testified that he saw Limoge move his head and thought he was going to get up so he shot him again. Kim testified that he then looked at Rivers, who was starting to get back up, and shot
4
him again. He testified that he saw a man in a car on his phone and told him to call 911. He then went to his apartment and called 911.
Detective Christopher Anderson testified that a sheathed knife that was buckled with a safety strap was found in Rivers’ waistband. He testified that was the only weapon found on either victim.
Douglas Weigand testified that he was a friend of Limoge and knew of Rivers’
reputation for carrying a knife, being violent, and being “a very very strong man.”
After hearing all the evidence, the jury found Kim guilty of both counts of murder and assessed punishment at fifty and sixty years’ imprisonment, respectively. 2 See id. §§ 12.32(a), 19.02(c). The trial court pronounced the sentences and ordered them to run concurrently. Kim appeals.
EVIDENTIARY ISSUE
In his first issue, Kim contends that the trial court erred when it excluded witness testimony at various times during the guilt-innocence phase. We review a trial court’s ruling regarding the admission or exclusion of evidence for an abuse of discretion. See Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim. App. 2011). Under that standard, a trial court’s ruling will be deemed an abuse of discretion only if it is so clearly wrong as to lie outside “the zone of reasonable disagreement,” Lopez v. State, 86 S.W.3d 228, 230 (Tex. Crim. App. 2002), or is “arbitrary or unreasonable,” State v. Mechler, 153 S.W.3d 435, 439 (Tex. Crim. App. 2005). Moreover, the ruling will be upheld provided that the trial court’s decision “is reasonably
2 Specifically, for count one, he was sentenced to fifty-years’ imprisonment for the murder of Rivers, and for count two, he was sentenced to sixty-years’ imprisonment for the murder of Limoge.
5
supported by the record and is correct under any theory of law applicable to the case.” Carrasco v. State, 154 S.W.3d 127, 129 (Tex. Crim. App. 2005). In addition, an appellate court reviews the trial court’s ruling in light of the record before the court “at the time the ruling was made.” Khoshayand v. State, 179 S.W.3d 779, 784 (Tex. App.—Dallas 2005, no pet.).
Evidence must be relevant to be admissible. Tex. R. Evid. 402. Evidence is relevant if it has any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. Id. R. 401. Generally, “[e]vidence of a person’s character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait.” Id. R. 404(a)(1). In circumstances in which evidence of the victim’s pertinent character trait may be admitted by the defendant, id. R. 404(a)(3)(A), it must be done through opinion testimony or testimony about the victim’s reputation, id. R. 405(a)(1), but not through specific acts, id. R. 404(b)(1). 3 Evidence of prior acts may be used for a purpose other than to prove character, such as intent or motive. Id. R. 404(b)(2).
Here, Kim contends that he was prevented from presenting evidence of Rivers’
pertinent character traits that he was very strong, violent, aggressive, and did not back down from fights. However, the trial court allowed opinion and reputation testimony for these traits and excluded evidence of specific acts. See id. R. 404, 405. Kim also contends that the same
3 Although there is an exception to this rule that allows for evidence of specific acts to be admitted when the victim’s “character or character trait is an essential element of a charge, claim, or defense,” Tex. R. Evid. 405(b), this exception does not apply here because “a victim’s character is not an essential element of a claim of self-defense,” Tate v. State, 981 S.W.2d 189, 192 n.5, 193 (Tex. Crim. App. 1998) (explaining that “[p]roving who was the aggressor in a claim of self-defense is not dependent exclusively upon the character of the victim”).
6
evidence was admissible for a purpose other than character conformity. See id. R. 404(b)(2) (stating that extraneous acts may be admitted for reasons other than character conformity).
First, Kim contends that the trial court erred when it excluded testimony that he asserts would have shown that his fear of Rivers and deadly response was justified. See Hysaw v. State, 155 S.W. 941, 942 (Tex. Crim. App. 1913) (explaining that “when self-defense is an issue and it is necessary to show the state of mind of the appellant at the time of the commission of the offense specific acts of violence of the deceased, which are then known to appellant or have been communicated to him,” may be admissible “to show [defendant’s] state of mind at the time”); see also Ex parte Miller, 330 S.W.3d 610, 618 (Tex. Crim. App. 2009). Specifically, he contends that a witness should have been allowed to testify that Rivers had once pulled “a pole embedded in concrete from the ground while, presumably, high on methamphetamine.” However, it is uncontroverted that Kim did not witness Rivers’ pulling a pole from the ground and was not otherwise aware of such action occurring at the time that he shot Rivers. Thus, the trial court did not abuse its discretion when it excluded this extraneous act evidence. See Becker v. State, 190 S.W. 185, 187 (Tex. Crim. App. 1916) (concluding that trial court did not err by excluding testimony about deceased’s assault of defendant’s son because no evidence showed that defendant knew about it prior to killing deceased).
Next, Kim contends that the trial court erred when it excluded testimony that he asserts was relevant for the purpose of showing Rivers’ intent and motivation to be the first aggressor. When a defendant claims self-defense, he may introduce evidence of the deceased’s specific violent acts under Rule of Evidence 404(b) to show the deceased’s state of mind, intent, or motive to demonstrate that the deceased was the first aggressor. Torres v. State, 117 S.W.3d 891, 894–95 (Tex. Crim. App. 2003). Because the evidence is probative of the deceased’s state
7
of mind or intent, the defendant does not need to know about the act. Id. at 895. Evidence of such acts is admissible only to the extent that it is relevant apart from showing character conformity. Id at 894. Accordingly, “some ambiguous or uncertain evidence of a violent or aggressive act by the victim must exist that tends to show the victim was the first aggressor” and “the proffered evidence must tend to dispel the ambiguity or explain the victim’s conduct.” Reyna v. State, 99 S.W.3d 344, 347 (Tex. App.—Fort Worth 2003, pet. ref’d); see also Torres, 117 S.W.3d at 895 (explaining that “[t]here must be some evidence of aggression by the deceased during the events that gave rise to the criminal charges in the case before the defendant may introduce evidence of a prior specific violent act that tends to explain the deceased’s later conduct”); Thompson v. State, 659 S.W.2d 649, 655 (Tex. Crim. App. 1983) (explaining that evidence of specific prior acts of deceased is admissible when it “explain[s] the deceased’s ambiguously aggressive conduct toward” defendant claiming self-defense). Thus, “a trial court is within its discretion to exclude prior violent acts if the victim’s conduct was plainly aggressive and no explanation is necessary to show that the defendant reasonably feared for his life.” Smith v. State, 355 S.W.3d 138, 150–51 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d).
Here, Kim contends that a witness should have been allowed to testify that Rivers tried to run that witness over with a car before jumping out of it with a knife. He contends that another witness should have been allowed to testify that Rivers engaged in a repeated pattern of targeted aggressive behavior towards that witness after he quit providing Rivers with free food. Kim also contends that the trial court erred when it excluded witness testimony about the alleged reason Rivers was agitated that day—that Rivers’ thought someone around Limoge’s car had
8
stolen from Rivers. 4 Notably, that witness was permitted to testify that he saw Rivers about an hour before the shooting and that he was angrily rifling through his own bags, was agitated, and then left in the direction of the parking lot where the shooting occurred.
At trial, Kim testified that Rivers brandished a knife and threatened to throw it at him before he shot Rivers and Limoge. Rivers’ alleged aggressive act was unambiguously aggressive. Compare Thompson, 659 S.W.2d at 655 (concluding that deceased’s act of walking towards defendant with outstretched arms while carrying weapons was “ambiguously aggressive conduct” that could be explained through extraneous-act evidence), with Laws v. State, 693 S.W.3d 718, 725 (Tex. App.—Houston [14th Dist.] 2024, pet. ref’d) (concluding that deceased’s “alleged actions [were] not ambiguous or uncertain and need[ed] no explanation by referencing prior violent conduct” when defendant “told police officers in his recorded statement that [deceased] picked up and threatened him with a long kitchen knife”). The excluded testimony of specific acts would not explain anything about his behavior during the fatal incident but rather would solely serve the purpose of proving character conformity. See Reyna, 99 S.W.3d at 347 (holding that evidence of deceased’s unambiguously aggressive acts was properly excluded because proffered testimony would do nothing more than show character conformity). Thus, we cannot conclude that the trial court abused its discretion. See id.
4 At trial, defense counsel argued that this was relevant to show that Rivers was the first aggressor against Kim. To the extent Kim is raising additional grounds regarding the admissibility of this evidence, we will not address them because they were not raised in the trial court. See Reyna v. State, 168 S.W.3d 173, 177 (Tex. Crim. App. 2005) (“The proponent, if he is the losing party on appeal, must have told the judge why the evidence was admissible.”); Martinez v. State, 91 S.W.3d 331, 336 (Tex. Crim. App. 2002) (holding that “appellate courts may uphold a trial court’s ruling on any legal theory or basis applicable to the case, but usually may not reverse a trial court’s ruling on any theory or basis that might have been applicable to the case, but was not raised”).
9
Finally, Kim contends that the trial court violated his due process and fair trial rights when it excluded evidence of Rivers’ above-mentioned extraneous acts during guilt-innocence but allowed evidence of Kim’s extraneous acts during punishment. In support he provides a single string cite, “See U.S. Const. amend. V, VI, XIV; Tex. Const. art. I, §§ 10, 19.” An appellant’s “brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.” Tex. R. App. P. 38.1(i). “This requirement is not satisfied by merely uttering brief, conclusory statements unsupported by legal citations.” Muhammed v. State, 331 S.W.3d 187, 195 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d). Conclusory allegations of constitutional violations, without more, are inadequately briefed and present nothing for review. See Bohannan v. State, 546 S.W.3d 166, 179–80 (Tex. Crim. App. 2017) (declining to address defendant’s claim of fundamental unfairness, due process violation, and violation of due course of law that only cited to federal and state constitutions after concluding it was “conclusory” and did “not contain any citations to appropriate authorities”). Thus, we conclude that Kim’s disparate-treatment issue is inadequately briefed, and we decline to address it. See id.
We overrule Kim’s first issue.
PROSECUTORIAL MISCONDUCT
In his second issue, Kim contends that the State committed prosecutorial misconduct when the prosecutor made an “improper speaking objection and inflammatory arguments.” The State contends that Kim did not preserve any error regarding this issue. We agree. He either did not object to or did not receive an adverse ruling for each alleged instance of prosecutorial misconduct. See Hernandez v. State, 538 S.W.3d 619, 622–23 (Tex. Crim. App.
10
2018) (explaining that defendants must object and pursue objection to adverse ruling to raise issue on appeal). Kim asserts that he is not required to preserve error for his prosecutorial misconduct issue if he shows that the misconduct denied him a fair trial. For the reasons below, we disagree.
Kim cites to Darden v. Wainwright, 477 U.S. 168, 181 (1986), and Jimenez v. State, 240 S.W.3d 384, 402 (Tex. App.—Austin 2007, pet. ref’d), in support of his assertion that prosecutorial misconduct issues do not require preservation if appellant shows that it constituted a due-process violation by denying him a fair trial. Notably, Darden did not address whether preservation is required when an appellant claims that the State’s improper arguments amounted to prosecutorial misconduct that deprived him of due process. See generally Darden, 477 U.S. 168. To the extent that the holding in Jimenez supports Kim’s assertion, the Texas Court of Criminal Appeals has more recently rejected this argument and held that challenges to allegedly improper questions, comments, and arguments by a prosecutor are subject to procedural default. See Compton v. State, 666 S.W.3d 685, 714, 729, 731 (Tex. Crim. App. 2023); see id. at 729 (holding that “if a defendant wishes to challenge a jury argument as unlawful, he must object to the argument to preserve his ability to complain about it on appeal”). Thus, we decline to address Kim’s issue raising unpreserved prosecutorial-misconduct grounds. See Tex. R. App. P. 33.1(a); Ford v. State, 305 S.W.3d 530, 532 (Tex. Crim. App. 2009) (explaining that if issue has not been preserved for appeal, court of appeals should not address merits of that issue); Lewis v. State, 448 S.W.3d 138, 146 (Tex. App.—Houston [14th Dist.] 2014, pet. ref’d) (“We are bound in criminal cases to follow decisions of the Court of Criminal Appeals.”); see also State ex rel. Wilson v. Briggs, 351 S.W.2d 892, 894 (Tex. Crim. App. 1961) (“The Court of Criminal Appeals is the court of last resort in this state in criminal matters. This
11
being so, no other court of this state has authority to overrule or circumvent its decisions, or disobey its mandates.”).
MOTION FOR NEW TRIAL
In his final issue, Kim contends that the trial court abused its discretion when it allowed his motion for new trial to be overruled by operation of law without holding a hearing.
We review the trial court’s denial of a motion for a new trial for an abuse of discretion and will reverse only if the ruling is arbitrary or unsupported by any reasonable view of the evidence. See Najar v. State, 618 S.W.3d 366, 372 (Tex. Crim. App. 2021). We also review the trial court’s denial of a hearing on a motion for new trial for an abuse of discretion. See Smith v. State, 286 S.W.3d 333, 339 (Tex. Crim. App. 2009). Thus, we will reverse only when the trial judge’s decision was so clearly wrong as to lie outside the zone of reasonable disagreement. See id. A defendant does not have an absolute right to a hearing on a motion for new trial. Reyes v. State, 849 S.W.2d 812, 815 (Tex. Crim. App. 1993).
Rule of Appellate Procedure 21.6 requires a defendant to timely “present” a motion for new trial to the trial court. Specifically, “[t]he defendant must present the motion for new trial to the trial court within 10 days of filing it, unless the trial court in its discretion permits it to be presented and heard within 75 days from the date when the court imposes or suspends sentence in open court.” Tex. R. App. P. 21.6. “The defendant must put the trial judge on actual notice that he desires the judge to take some action, such as making a ruling or holding a hearing, on his motion for new trial.” Gardner v. State, 306 S.W.3d 274, 305 (Tex. Crim. App. 2009). “Presentment” must be apparent from the record. Id. “[M]erely filing a motion is insufficient” to satisfy the presentment requirement. Stokes v. State, 277 S.W.3d 20, 24 (Tex. Crim. App.
12
2009). When an appellant “did not show that he timely presented his motion for new trial to the trial judge . . . the trial judge did not abuse his discretion in failing to conduct a hearing on that motion.” Gardner, 306 S.W.3d at 306.
Here, there is nothing in the record that demonstrates that Kim timely presented his motion. The record reflects that appellate counsel filed a motion for new trial on June 13, 2024. Counsel filed an amended motion for new trial, which included a request for a hearing, and a Certificate of Presentment on June 28, 2024. However, the certificate alone does not satisfy the presentment requirement. See Colone v. State, 573 S.W.3d 249, 259 (Tex. Crim. App. 2019) (noting that “the mere filing of a ‘certificate of presentment’ will not suffice to establish that a motion for new trial and request for a hearing has been presented to the trial court”). The State responded to Kim’s motion on July 8, 2024, and argued that the trial court should not hold a hearing and should allow the motion to be overruled by operation of law because he had not shown that he timely presented the motion to the trial court. Based on an email dated July 15, 2024, and attached to Kim’s notice of appeal filed in the trial court, the trial judge determined based on “the motion, certifications, and response” that “a hearing is not warranted” and that the motion should be allowed to be overruled by operation of law. Notably, this email does not establish that the motion was timely presented, only that it was presented. Kim attached a document to his appellate brief, which is not included in the record, that he contends supports that his motion was timely presented. Without deciding whether his attachment would satisfy the timely presentment requirement if included in the record, we conclude that Kim has failed to establish that it is “apparent from the record” that he timely presented his motion for new trial and request for a hearing to the trial court. See Gardner, 306 S.W.3d at 305. Thus, we cannot conclude that the trial court abused its discretion in not conducting a hearing on his motion for
13
new trial and allowing it to be overruled by operation of law. See id. at 306 (holding that trial court did not abuse its discretion when defendant did not present motion for new trial to trial court). We overrule Kim’s final issue.
CONCLUSION
We affirm the trial court’s judgments of conviction.
__________________________________________
Darlene Byrne, Chief Justice
Before Chief Justice Byrne, and Justices Crump and Ellis Affirmed Filed: August 31, 2026 Do Not Publish