Tran, Nam Bryan

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
_________________________________
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
i
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
ii
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
iii
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).
1
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).
2
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).
3
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
4
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
5
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
6
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).
7
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.
8
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,
9
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
10
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
11
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
12
APPENDIX
Opinion of the Sixth Court of Appeals
13