                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-13-00191-CR


TUAN NGUYEN                                                       APPELLANT

                                         V.

THE STATE OF TEXAS                                                     STATE


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          FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY
                      TRIAL COURT NO. 1318975R

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                        MEMORANDUM OPINION1

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                                   I. Introduction

      A jury convicted Appellant, Tuan Nguyen (Tuan), in the shooting deaths of

Binh Quoc Lam (Lam) and Nhan Tran (Tran) and sentenced him to life in prison.

In three issues Tuan appeals his conviction. We affirm.




      1
       See Tex. R. App. P. 47.4.
                             II. Statement of Facts

      The night of October 13, 2010, Tran’s uncle, Thien Nguyen (Uncle

Nguyen) picked up Tran, and they headed to Saigon Nights nightclub in Arlington

where they met up with Lam and some other acquaintances.            While at the

nightclub, Hai Van Phan (Phan) arrived to talk to Lam about Tuan disrespecting

Phan. Lam then called Tuan, who was at a gambling house in Haltom City. Lam

accused Tuan of disrespecting Phan; he told Tuan not to leave the gambling

house before he arrived, and if he did, Lam had better not catch Tuan in Haltom

City again.

      A short time later, Uncle Nguyen, Phan, Lam, and Tran arrived at the

gambling house where they met Tuan outside; an altercation broke out between

Lam and Tuan. Lam hit Tuan and pointed a gun at Tuan’s head; an intoxicated

Lam2 then told Tuan he was going to shoot him.3 Uncle Nguyen intervened to

break up the fight and got the gun from Lam. Lam and Tuan continued to fight,

and Lam was knocked to the ground. Uncle Nguyen testified that he saw a friend

of Tuan’s come around a corner and start shooting in the direction of Lam, so

Uncle Nguyen ran to hide in some bushes. Both Uncle Nguyen and another




      2
       A witness testified during trial that Lam was so intoxicated he was barely
able to stand upright.
      3
        Uncle Nguyen witnessed the entire altercation and testified as such during
the trial.


                                        2
witness testified that while Lam was lying on the ground, Tuan drew his gun from

behind his back and shot Lam in the back of the head.4

      During the fight, Phan ran and got into the passenger seat of a nearby

white Lexus. After shooting Lam, Tuan walked over to the Lexus. According to

Tuan, when he approached the Lexus, Phan was looking for what Tuan believed

was a gun, so he shot him five times. While Tuan was shooting Phan,5 someone

was shooting at Tuan from the area where Tran’s body was later found, and

Tuan returned fire to that area.6 According to Tuan, after returning fire, he ran

out of bullets, returned to the area of the Lexus, reloaded, and returned fire when

someone shot at him again.

      Tuan then ran toward Tran and Uncle Nguyen and shot Tran. 7 Uncle

Nguyen began shooting at Tuan, hitting him in the stomach, and then drove away




      4
       According to the deputy medical examiner, an examination of Lam’s back-
of-the-head entry wound showed that when Tuan fired the shot, the barrel of the
weapon was about half an inch or so away from the skin, resulting in a loose-
contact or near-contact wound.
      5
       Phan died from his injuries.
      6
       During Tuan’s testimony he stated that once he shot Phan someone
started shooting at him from behind so he had “to continue [his] action until [he
wasn’t] mad and angry anymore.”
      7
       Tuan’s testimony differs from Uncle Nguyen’s in that according to Tuan he
shot randomly in their direction because someone was shooting at him, and he
did not walk directly toward them. Tuan said it may have been Uncle Nguyen
shooting from the location where Tran’s body was later located.


                                        3
when his pistol was empty.8 A witness testified that he heard Tran calling for

Uncle Nguyen after he was shot but that Uncle Nguyen had run away. The

witness also heard Tuan go back and shoot Tran again after Tran begged for his

life; Tuan told Tran that he had no business being there that night.           Tuan

admitted causing the deaths of Lam and Tran.9

      In this case, the indictment’s first count alleged that Tuan, on or about

October 13, 2010, did “then and there intentionally cause the death of an

individual, . . . Lam, by shooting him with a firearm and did then and there

intentionally cause the death of an individual, . . . Phan, by shooting him with a

firearm and both murders were committed during the same criminal transaction.”

See Tex. Penal Code Ann. § 19.03(a)(7) (West 2011 & Supp. 2014). The trial

court submitted lesser-included offense instructions regarding just the murders of

Lam and Phan individually. See id. § 19.02 (West 2011); Moore v. State, 969

S.W.2d 4, 11–12 (Tex. Crim. App. 1998) (holding that when evidence might

support finding defendant killed one victim in self-defense, yet murdered second

victim without justification, lesser-included offense instruction regarding murder of

just second victim is appropriate).




      8
      According to Tuan’s version of the events, Uncle Nguyen shot him in the
stomach during his altercation with Lam, not after he had shot Tran the first time.
      9
       Tuan admitted that after he shot Lam he shot Phan, stating “either I die or
they die.”


                                         4
       The indictment’s second count charged Tuan with intentionally or

knowingly causing Tran’s death “by shooting him with a firearm.”                The

indictment’s second paragraph charged that Tuan “intentionally, with intent to

cause serious bodily injury to. . . Tran, commit[ted] an act clearly dangerous to

human life, namely, shooting him with a firearm, which caused the death

of. . . Tran.” See Tex. Penal Code Ann. §19.02(b)(2) (defining alternative method

of committing murder as when the actor “intends to cause serious bodily injury

and commits an act clearly dangerous to human life that causes the death of an

individual”).

       The jury found Tuan not guilty of capital murder as charged in the

indictment’s first count and not guilty of the murder of Phan, but returned a guilty

verdict with respect to the lesser-included offense of the murder of Lam. The jury

also found Tuan guilty of murdering Tran as alleged in the indictment’s second

paragraph.

                         III. Sufficiency of the Evidence

       In his first issue, Tuan asserts that the evidence presented by the State at

trial was insufficient to convict him of the murder of Lam because the evidence

demonstrated he was acting in self-defense.

       A. Standard of Review

       In our due-process review of the sufficiency of the evidence to support a

conviction, we view all of the evidence in the light most favorable to the verdict to

determine whether any rational trier of fact could have found the essential


                                         5
elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.

307, 319, 99 S. Ct. 2781, 2789 (1979); Winfrey v. State, 393 S.W.3d 763, 768

(Tex. Crim. App. 2013).

      The defendant has the burden of producing some evidence to support a

claim of self-defense. Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App.

2003). After the defendant produces some evidence to support a claim of self-

defense, the State bears the burden of persuading the finder of fact that the

defendant did not act in self-defense. Id. ; Saxton v. State, 804 S.W.2d 910,

913–14 (Tex. Crim. App. 1991); Dotson v. State, 146 S.W.3d 285, 291 (Tex.

App.—Fort Worth 2005, pet. ref’d).

      To determine sufficiency of the evidence to disprove a nonaffirmative

defense, the appellate court asks

      whether after viewing all the evidence in the light most favorable to
      the prosecution, any rational trier of fact would have found the
      essential elements of [the offense] beyond a reasonable doubt and
      also would have found against appellant on the [defensive] issue
      beyond a reasonable doubt.

See Saxton, 804 S.W.2d at 914 ; see also Smith v. State, 355 S.W.3d 138, 144–

47 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d) (applying Saxton and Zuliani

to the jury’s rejection of the defendant’s self-defense and defense-of-third-person

theories). “[A] judge must give a requested instruction on every defensive issue

raised by the evidence without regard to its source or strength, even if the

evidence is contradicted or is not credible.” Krajcovic v. State, 393 S.W.3d 282,

286 (Tex. Crim. App. 2013).


                                        6
      B. Self-Defense

      According to the Texas Penal Code, “a person is justified in using force

against another when and to the degree the actor reasonably believes the force

is immediately necessary to protect the actor against the other’s use or

attempted use of unlawful force.” Tex. Penal Code Ann. § 9.31 (West 2011).

As to deadly force used,

      (a) A person is justified in using deadly force against another:

             ....

             (2) when and to the degree the actor reasonably believes the
             deadly force is immediately necessary:

                    (A) to protect the actor against the other’s use or
                    attempted use of unlawful deadly force; or

                    (B) to prevent the other’s imminent commission of
                    aggravated kidnapping, murder, sexual assault,
                    aggravated sexual assault, robbery, or aggravated
                    robbery.

Id. § 9.32(a)(2)(A)(B).

      As was recounted, the evidence shows that Tuan walked over to the

weaponless Lam, who was lying face down on the ground, and shot Lam in the

back of his head with the pistol touching or nearly touching the skull. A person

who shoots his weaponless victim in the back of the head when the victim is in a

prone position is not a person who acts in self-defense. See Else v. State, 666

S.W.2d 251, 252 (Tex. App.—Dallas 1984, pet. ref’d) (holding that evidence of a

victim that was shot from behind supports a jury’s rejection of a self-defense



                                         7
claim); see also Gutierrez v. State, No. 03-01-00703-CR, 2002 WL 1987959, at

*2–3 (Tex. App.—Austin 2002 no pet.) (mem. op., not designated for publication)

(same); Munlin v. State, No. 05-97-01553-CR, 1999 WL 732730, at *4 (Tex.

App.—Dallas 1999, no pet.) (not designated for publication) (holding that

evidence showing a victim shot in the back of the head at close range supported

rejection of self-defense claim). A rational trier of fact could have found against

Tran on his claim of self-defense for this reason. See Saxton, 804 S.W.2d at

914. Viewing the evidence in the light most favorable to the jury’s verdict, legally

sufficient evidence supports Tuan’s self-defense claim.       Tuan’s first issue is

overruled.

                          IV. Self-defense Instruction

      In his second and third issues Tuan asserts that the trial court erred by

denying Tuan’s request to include a self-defense instruction in the charge

regarding the murder of Tran.

      We are required to apply a two-step process in analyzing alleged charge

error. Abdnor v. State, 871 S.W.2d 726, 731 (Tex. Crim. App. 1994). We first

determine whether error occurred; if error did not occur, our analysis ends.

Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012).

      A defendant is entitled to an instruction on every defensive issue raised by

the evidence regardless of the strength of the evidence. Brown v. State, 955

S.W.2d 276, 279 (Tex. Crim. App. 1997). Defensive issues may be raised by the

testimony of the accused or any other witness, including those called by the


                                         8
State. See Jackson v. State, 110 S.W.3d 626, 631 (Tex. App.—Houston [14th

Dist.] 2003, pet. ref’d). Moreover,

      [a] defendant is entitled to an instruction on the law of self-defense if
      there is some evidence that he intended to use force against another
      and he did use force, but he did so only because he reasonably
      believed it was necessary to prevent the other’s use of unlawful
      force.

Ex Parte Nailor, 149 S.W.3d 125, 132 (Tex. Crim. App. 2004).

      There is no evidence that Tran was ever armed on the occasion in

question, and logically likewise no evidence that he was responsible for firing any

shots at Tuan or anyone else.         Further, the evidence showed that (1) Tran

begged for his life when Tuan approached him the second time, (2) Tuan told

Tran he should not have come, he had no business there, and (3) Tuan then shot

Tran again, killing him. In short, all of the evidence shows that Tran was a

nonparticipating, unarmed bystander. It is axiomatic that the second time Tuan

shot Tran, he could not have been defending himself against this wounded,

unarmed bystander who was begging for his life. The trial court did not err in

rejecting the self-defense instruction request, and Tuan’s second and third issues

are overruled.




                                          9
                                  V. Conclusion

         Having overruled Tuan’s three issues, we affirm the judgment of the trial

court.

                                                   PER CURIAM


PANEL: MCCOY, MEIER, and GABRIEL, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: October 23, 2014




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