             In the
        Court of Appeals
Second Appellate District of Texas
         at Fort Worth
     ___________________________

          No. 02-18-00128-CR
          No. 02-18-00129-CR
     ___________________________

       SON T. DUONG, Appellant

                    V.

          THE STATE OF TEXAS


On Appeal from Criminal District Court No. 3
           Tarrant County, Texas
   Trial Court Nos. 1500206D, 1500204D


   Before Kerr, Bassel, and Womack, JJ.
   Memorandum Opinion by Justice Kerr
                            MEMORANDUM OPINION

       A jury found Son T. Duong guilty of (1) aggravated assault with a deadly

weapon and (2) unlawful possession of a firearm. After finding the repeat-offender

notices true in both cases, the jury assessed Duong’s punishment at (1) life in prison

and a $10,000 fine for the former offense and (2) 20 years’ imprisonment and a

$10,000 fine for the latter. See Tex. Penal Code Ann. §§ 22.02(a)(2), 46.04(a). After the

trial court sentenced Duong, Duong appealed, and in a brief encompassing both

cases, he asserts four issues:

          • First, the trial court violated his Sixth Amendment right to confront
            witnesses against him when he was denied the right to be present in
            court while the jury listened to and viewed audio and video recordings.

          • Second, the evidence was insufficient to prove that he committed an
            aggravated assault because there was no direct evidence showing who
            shot the complainant.

          • Third, the evidence was insufficient to prove that he committed the
            offense of unlawful possession of a firearm because “[t]here [was] no
            evidence of possession of the firearm other than his location in the
            vehicle.”

          • Fourth, the trial court erred in not ordering a competency examination
            after he attempted suicide and evidenced mental illness during the course
            of the trial.

We affirm.
                                 Evidentiary Sufficiency

       Because Duong’s second and third issues, his sufficiency complaints, would

result in greater relief if granted, we address them first. See Cox v. State, No. 02-16-

00400-CR, 2017 WL 4172604, at *3 (Tex. App.—Fort Worth Sept. 21, 2017, no pet.)


                                           2
(mem. op., not designated for publication); Mixon v. State, 481 S.W.3d 318, 322 (Tex.

App.—Amarillo 2015, pet. ref’d).

      In Duong’s second issue, he argues that the evidence was insufficient to prove

that he committed an aggravated assault because there was no direct evidence

showing that he was the person who shot the victim. And in his third issue, Duong

contends that the evidence was insufficient to prove that he committed the offense of

unlawful possession of a firearm because “[t]here [was] no evidence of possession of

the firearm other than his location in the vehicle.” Because circumstantial evidence

shows what direct evidence does not, we disagree.

                                Standard of Review

      Federal due process requires that the State prove beyond a reasonable doubt

every element of the crime charged. Jackson v. Virginia, 443 U.S. 307, 316, 99 S. Ct.

2781, 2787 (1979); see U.S. Const. amend. XIV. In our due-process evidentiary-

sufficiency review, we view all the evidence in the light most favorable to the verdict

to determine whether any rational factfinder could have found the crime’s essential

elements beyond a reasonable doubt. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789;

Queeman v. State, 520 S.W.3d 616, 622 (Tex. Crim. App. 2017). The standard of review

is the same for direct and circumstantial evidence cases; circumstantial evidence is as

probative as direct evidence in establishing guilt. Jenkins v. State, 493 S.W.3d 583,

599 (Tex. Crim. App. 2016).



                                          3
      A. The Evidence

      Kevin Nguyen and Michelle Ngo were best friends and would talk to each

other every day on the phone, but Ngo had not responded to any texts or calls in

about two weeks. So Khang Bui and Nguyen drove over to Ngo’s house around

3:00 a.m. on May 25, 2017, to check on her. Ngo lived with her five children and her

nephew, Duong.

      Shortly after Bui and Nguyen arrived, the garage door to Ngo’s house opened,

and Duong walked out of the garage and down the driveway with a gun in his hand.

Seeing Duong’s gun, Bui panicked and drove away, but Duong fired anyway and

struck Bui in the back with one shot and grazed Bui’s head with another.

      The shooting prompted a series of 911 calls. A neighbor first called

911 reporting having heard shots fired around 3:29 a.m.; Bui called around 3:42 a.m.;

and Nguyen called around 4:11 a.m.

      Inside her house, Ngo heard the shots and then heard Duong come back

indoors and say, “I’m going to go look for him,” and “I’m going to shoot any MFer

who comes over here,” after which Duong left in his Camaro. Not until Nguyen

called Ngo did she learn that Bui had been shot.

      But Ngo herself waited until 4:20 a.m. to call 911. She explained that about two

weeks earlier, surveillance cameras had been set up inside her house; there had already

been an outside camera viewing the driveway, but interior cameras were added. Ngo

testified that she was afraid to call the police because Duong could view the

                                          4
surveillance cameras remotely. She also admitted stating in her 911 call that she was

being held hostage in her home and, further, acknowledged telling Nguyen the same

thing.

         Officer Rene Sandoval, who responded to the shooting call, saw a surveillance

screen in the kitchen and found the mainframe in Duong’s bedroom closet. And the

crime-scene investigator, Anna-Dia Tricksey, found another surveillance video screen

in Duong’s bedroom. Officer Sandoval described Ngo as being terrified because

Duong knew where she was at any given moment, so Officer Sandoval adjusted the

cameras to blind any onlooker.

         Investigator Tricksey discovered that the driveway camera had captured the

shooting. One video, in which Duong is facing the camera, showed Duong getting

into his parked Camaro that night around 12:30 a.m. In a second video around

3:18 a.m., Duong, with his back to the camera but wearing the same clothing, can be

seen with a gun in his right hand walking from the garage to the street where—

according to Detective Russell Evans—Duong “almost does a jump move and both

of his hands go up” and he is poised to start shooting.1 Even viewing Duong’s video




        The driveway light illuminates the driveway area but not the street; Bui’s car’s
         1

headlights, initially on the camera’s left, temporarily illuminate the street as seen on
the video. But by the time Duong reaches the street, Bui has driven off the screen to
the right, and Duong steps into the darkness. Although the video is not entirely clear,
Duong appears to hop into a crouching position associated with firing a pistol.


                                           5
image from the back, Ngo could identify him. In addition, having seen Duong both in

a photograph and in person, Detective Evans testified that the videos showed Duong.

      When viewing the second video, Bui testified that it caught a man walking

down the driveway with a gun in his hand and showed Bui’s car driving away. But Bui,

who had never met Duong or the father of Ngo’s children (Vince), thought the man

was Vince.

      When Nguyen had called 911 that night, he identified the shooter as Ngo’s

nephew, not Vince. Nguyen did not testify at trial, however; Detective Evans

explained that Nguyen was afraid and refused to help.

      Nguyen’s reluctance was not unique. Ngo herself was uncomfortable

incriminating Duong, her sister’s son, and did not want to testify. She maintained that

the surveillance cameras were “mostly” her idea. Despite her reservations, Ngo

acknowledged that the man in the videos looked like Duong, not like Vince, and that

after Duong had left earlier that night to take a girl home, he came back before

1:00 a.m. and did not leave again until after she had heard the shots.

      Vince—the father of Ngo’s children or Ngo’s “ex-husband”—lived in

California. Although Vince had come by to visit the children once sometime within a

week or two before the shooting, Ngo denied that anyone was in the house that night

other than her and her children.

      Later the same day as the shooting, the police arrested Duong after a “high

risk” traffic stop. Police surveillance had located Duong and had seen him carrying

                                           6
two bags and getting into the backseat of a white Lexus, behind the driver. When the

police later pulled the Lexus over, Duong was alone in the backseat and still on the

driver’s side. In the backseat with him were a semiautomatic pistol visible on the

floorboard where Duong was sitting, a credit card with Duong’s name on it, and two

black bags. The semiautomatic pistol was fully loaded. In the pocket attached to the

passenger’s seat’s back was Duong’s Louisiana ID card.

        The magazine capacity of the semiautomatic pistol that the police recovered

was ten rounds, and ten casings were precisely what Investigator Tricksey recovered

from the shooting location; she also recovered several “projectiles” (bullets) from

Bui’s car. The bullet that the doctors had removed from Bui’s body was collected as

well.

        A firearm and tool-mark examiner determined that the ten casings and four of

the six recovered bullets—which included the one removed from Bui’s body—were

fired from the semiautomatic pistol that the police recovered when arresting Duong.

Two of the six bullets were too damaged to make any kind of conclusion.

        The State also introduced evidence that Duong had been convicted of a felony

in 2011.

        B. Discussion

        A defendant’s mere presence where an item such as a weapon is found does

not suffice, by itself, to show actual care, custody, or control of the item. See Evans v.

State, 202 S.W.3d 158, 162 (Tex. Crim. App. 2006). The State must prove that the

                                            7
defendant knew of the weapon’s existence and that he exercised actual care, custody,

control, or management over it. Belle v. State, 543 S.W.3d 871, 875 (Tex. App.—

Houston [14th Dist.] 2018, no pet.). If the firearm (or other item) is not found on the

defendant, or if it is not in his exclusive possession, the State must offer additional,

independent facts and circumstances affirmatively linking him to the firearm. Id. In

this way, an innocent bystander will not be convicted solely because of his fortuitous

proximity to a firearm. Ramirez v. State, No. 02-12-00077-CR, 2012 WL 4937103, at

*2 (Tex. App.—Fort Worth Oct. 18, 2012, no pet.) (mem. op., not designated for

publication). The evidence’s logical force, not the number of connecting factors,

determines possession. Id. at *3.

      Here, the evidence was uncontradicted that Duong was a convicted felon, and

the police found the semiautomatic pistol on the floorboard precisely where Duong

was sitting in the backseat. No one else was in the backseat, and other items—such as

Duong’s ID and credit card—were in the same immediate area. Viewing the evidence

in the light most favorable to the verdict, the logical force of the evidence allowed a

rational juror to conclude beyond a reasonable doubt that Duong was a felon

unlawfully in possession of a firearm away from the premises where he lived. See

Queeman, 520 S.W.3d at 622; Evans, 202 S.W.3d at 162; Belle, 543 S.W.3d at 875;

Ramirez, 2012 WL 4937103, at *3.

      And the semiautomatic pistol that the police recovered when arresting Duong

was the same one that had left shell casings outside Ngo’s house and bullets in Bui’s

                                           8
car and body. The driveway video shows Duong leaving the garage with a pistol in his

hand and Bui’s car driving away. Although the video then shows Duong stepping into

the darkness of the street and does not clearly show what Duong does once there,

Bui’s testimony and the physical evidence—the shell casings and the bullets—answer

that question. A rational juror could find beyond a reasonable doubt that Duong

intentionally or knowingly caused Bui bodily injury by shooting him with a firearm. See

Queeman, 520 S.W.3d at 622.

      We overrule Duong’s second and third issues.

                                Confrontation Clause

      In Duong’s first issue, he argues that the trial court denied him his Sixth

Amendment right to confront witnesses when, during the jury’s deliberations, it

permitted the jury to listen to and view audio and video recordings in the courtroom

without Duong’s being present. We disagree.

      A. The Record

      While deliberating, the jurors asked to see certain videos and hear certain

911 calls. In discussing this request with the attorneys, the trial court commented that

reviewing the audio and video recordings would be easier in the courtroom. When

questioned about whether Duong wanted to be present, defense counsel stated that

Duong wanted both to be present and to “dress out”—that is, to wear street clothes.

Duong had tried to commit suicide earlier in the trial by cutting his wrists and




                                           9
according to the bailiff was “still in his moo-moo”2; the bailiff thought that allowing

Duong to dress in regular clothes was ill-advised because Duong might try to hang

himself in the holding cell. Defense counsel stated that he preferred that Duong not

be present because “we can’t . . . do anything” other than listen to the 911 recordings

and watch the videos along with the jurors. The prosecutor expressed security

concerns and misgivings that, “based on his behavior the last time we saw him in the

courtroom,” Duong might make an outburst before the jury, so she suggested turning

on the “baby monitor” in the holding cell so that Duong could hear what was

occurring. Stating that “this isn’t new evidence or testimony,” the trial court agreed to

use the monitor, and defense counsel expressly stated that he had no objection

because “[w]e believe that allows sufficient presence with the proceedings for my

client.”

       But after the jury entered the courtroom and started reviewing the recordings,

Duong began yelling from his nearby holding cell: “I wanted to be in court. I told my

attorney I wanted to be in court.” The trial court excused the jury and instructed the

bailiff to put Duong on a different floor. The jurors later returned to the courtroom

and completed their review, after which they went back to the jury room to continue

       Although the record does not explain what a “moo-moo” (more likely a
       2

muumuu) is, the context suggests that Duong was still wearing the jail-provided safety
clothing to which the trial court had referred on the second day of trial: “And so
understanding that it could hurt your case, you still want to wear what you have on,
which is the jail clothing. And it’s not even just a regular jail clothing, it’s the safety
clothing because of I guess what happened last night.”


                                            10
deliberating. With the jury absent, defense counsel then put on the record that one of

the reasons he had not wanted Duong in the courtroom was because he feared that

Duong would make an outburst like the one Duong had just made from his holding

cell.

        B. The Standard of Review

        To a large extent, the constitutional right to be present is rooted in the

Confrontation Clause of the Sixth Amendment. United States v. Gagnon, 470 U.S. 522,

526–27, 105 S. Ct. 1482, 1484 (1985). But in some situations where the defendant is

not actually confronting witnesses or evidence against him, the Supreme Court has

recognized that this right is protected by the Due Process Clause. Id., 105 S. Ct. at

1484. A defendant has a due-process right to be present at a proceeding whenever his

presence reasonably and substantially relates to the fullness of his opportunity to

defend against the charge. Id., 105 S. Ct. at 1484. The defendant’s presence is a due-

process condition only to the extent that his absence would thwart a fair and just

hearing. Id., 105 S. Ct. at 1484. The propriety of excluding a defendant from a trial

proceeding should be considered in light of the whole record. Id., 105 S. Ct. at 1484.

If a defendant could have done nothing or had nothing to gain by attending, there is

no violation. Id. at 527, 105 S. Ct. at 1484–85.

        Providing an analogous example, in Snyder v. Massachusetts the trial court granted

a motion to have the jury view the alleged crime scene but denied the defendant’s

motion to view the scene with the jury. 291 U.S. 97, 103, 54 S. Ct. 330, 331 (1934)

                                            11
(Cardozo, J.).3 Simply viewing the scene without comment from any source—which is

similar to the jurors here reviewing recordings during deliberation without comment

from the parties—was the Supreme Court’s first topic: “At the outset, we consider a

bare inspection and nothing more, a view where nothing is said by [anyone] to direct

the attention of the jury to one feature or another.” Id. at 108, 54 S. Ct. at 333. The

Court concluded that this was a constitutional nonissue: “The Fourteenth

Amendment does not assure to a defendant the privilege to be present at such a time.

There is nothing he could do if he were there, and almost nothing he could gain.” Id.,

54 S. Ct. at 333.

       C. Discussion

       As defense counsel correctly pointed out, while the jurors reviewed the

recordings there was nothing for anyone else to do. We hold that the Snyder rationale

applies here and overrule Duong’s first issue. See id., 54 S. Ct. at 333.




       3
        The Supreme Court later overruled Snyder twice on other grounds. Duncan v.
Louisiana, 391 U.S. 145, 154–55, 88 S. Ct. 1444, 1450–51 (1968) (rejecting dicta in
Snyder that “the right to jury trial is not essential to ordered liberty and may be
dispensed with by the States regardless of the Sixth and Fourteenth Amendments.”);
Malloy v. Hogan, 378 U.S. 1, 6, 84 S. Ct. 1489, 1492 (1964) (“We hold today that the
Fifth Amendment’s exception from compulsory self-incrimination is also protected by
the Fourteenth Amendment against abridgment by the States.”). But both the
Supreme Court and the Texas Court of Criminal Appeals have continued to cite
Snyder for its discussion of a defendant’s right to be present. Kentucky v. Stincer,
482 U.S. 730, 745, 107 S. Ct. 2658, 2667 (1987); Routier v. State, 112 S.W.3d 554, 576–
77 (Tex. Crim. App. 2003).

                                            12
                                      Competency

       In Duong’s fourth issue, he argues that the trial court abused its discretion in

failing to order a competency hearing when Duong attempted suicide after the first

day of testimony and made other self-defeating decisions and inappropriate outbursts

during the trial. We disagree. For the reasons set out below, the trial court could have

reasonably concluded that Duong was deliberately trying to sabotage the trial; it

follows that the trial court did not abuse its discretion.

       A. Standard of Review

       Putting an incompetent person to trial violates due process. Turner v. State,

570 S.W.3d 250, 262 (Tex. Crim. App. 2018). The code of criminal procedure sets out

the parameters of competency:

       (a) A person is incompetent to stand trial if the person does not have:

          (1) sufficient present ability to consult with the person’s lawyer with a
          reasonable degree of rational understanding; or

          (2) a rational as well as factual understanding of the proceedings
          against the person.

       (b) A defendant is presumed competent to stand trial and shall be found
       competent to stand trial unless proved incompetent by a preponderance
       of the evidence.

Tex. Code Crim. Proc. Ann. art. 46B.003.

       If the court determines that some evidence supports an incompetent-to-stand-

trial finding, a jury is to be empaneled to determine the defendant’s competency to

stand trial. Moore v. State, 999 S.W.2d 385, 393 (Tex. Crim. App. 1999). In determining


                                            13
whether evidence requires empaneling a separate jury to conduct a competency

hearing, the trial court considers only the evidence tending to show incompetency and

whether there is some evidence—a quantity more than none or a scintilla—that

rationally could lead to an incompetency determination. Id. The same standard applies

whether the issue is presented pretrial or during trial. Id. A competency hearing is not

required unless the evidence is sufficient to create a bona fide doubt in the judge’s

mind whether the defendant meets the test of legal competence. Id.

      On appeal, the standard of review is whether the trial court abused its

discretion by not empaneling a jury to conduct a competency hearing. Id. Under the

abuse-of-discretion standard, we defer not only to a trial judge’s resolution of disputed

facts, but also to the trial judge’s right to draw reasonable inferences from those facts.

Cantu v. State, 253 S.W.3d 273, 282 (Tex. Crim. App. 2008); see McDonald v. State,

No. 02-17-00264-CR, 2018 WL 5289358, at *6 (Tex. App.—Fort Worth Oct. 25,

2018, pet. ref’d) (mem. op., not designated for publication); Arroyos v. State, Nos. 02-

11-00135-CR, 02-11-00136-CR, 2012 WL 1555900, at *1 (Tex. App.—Fort Worth

May 3, 2012, no pet.) (mem. op., not designated for publication).




                                           14
      B. The Record (The Short Version)4

      An hour before trial was to start, Duong requested an opportunity to hire new

counsel. After the trial court informed Duong that the trial would proceed, Duong

refused to remain in the courtroom during voir dire. To accommodate him, the trial

court put a monitor in Duong’s holding cell so that he could listen to the proceedings.

      During the first day of testimony, Duong was present in the courtroom and did

nothing to disrupt the proceedings.

      But that night, Duong tried to commit suicide. Later in the trial, the bailiff

seemed skeptical about how serious this attempt was, describing the cuts to Duong’s

wrists as superficial and not requiring any stitches. Regardless, not dressed even in

regular jail clothing but in “safety clothing,” as we discussed above, Duong insisted on

sitting in the courtroom against defense counsel’s advice, which he succeeded in

doing. Only moments after the jury was seated in the courtroom, Duong announced

to the jurors that he had attempted to commit suicide and tried to show them his

wrists. And only 26 minutes after the jury had entered the courtroom and the first

witness had taken the stand, Duong insisted on a bathroom break. After that break,

Duong refused to return to the courtroom, so trial resumed with Duong in his

holding cell with the monitor.

      4
        In the appendix, we provide more detailed summaries and lengthy excerpts
from the reporter’s record showing the dynamics among Duong, defense counsel, the
trial court, and ultimately the bailiff. For attorneys facing a similar situation, the
appendix might prove insightful.


                                          15
      During the afternoon, defense counsel reported that Duong wanted to remain

in his holding cell. But after the State rested, the trial court had Duong brought back

to the courtroom, where he remained mute and refused to answer any questions, so

he was returned to his holding cell. After the jury retired to deliberate, it sent a note

asking to review some of the videos and 911 recordings; the trial court decided that,

given the late hour, the jurors would review the requested items in the courtroom the

following day.

      That next morning, Duong not only wanted to be in the courtroom while the

jurors reviewed the 911 recordings and the videos, but he also wanted to “dress out.”

The bailiff opined that putting Duong in regular clothing presented a security risk

because Duong might try to hang himself in the holding cell (presumably with one of

the separate items of clothing). For his part, defense counsel preferred that Duong

not be in the courtroom because they would only be observing the jurors watching

videos and listening to recordings. And the State was concerned that Duong would

make another outburst, so it recommended leaving Duong in his holding cell with the

monitor, which was the course of action that the trial court took.

      Once the jurors were in the courtroom, though, Duong began yelling from his

holding cell that he wanted to be in the courtroom. After the trial court sent the jurors

back to the jury room, the bailiff moved Duong to a holding cell on another floor.

      Later, after the jury had finished deliberating and notified the trial court that it

had rendered verdicts, the trial court brought Duong back to ask him if he wanted to

                                           16
be present for the verdicts. Duong indicated that he did not. But once Duong was

back in his holding cell, Duong again made such a racket that the trial court again had

him moved to a different floor. After the jury announced its guilty verdicts, the

punishment trial began.

      The next day, when the punishment trial resumed, defense counsel informed

the court that he had seen Duong and that Duong refused to answer any questions.

Defense counsel reported, “So he’s expressed a desire not to be present or participate,

Judge.” The punishment trial resumed.

      But later, when the jury retired to deliberate on punishment, the trial court had

Duong brought back. This time, however, Duong so actively resisted the bailiff that

the trial court had Duong sent back to the holding cell where, once again, Duong was

provided a monitor so that he could listen to the proceedings.

      C. Discussion

      Deferring to the trial court’s resolution of disputed facts and its right to draw

reasonable inferences from those facts, we conclude that the trial court could have

reasonably decided that Duong was deliberately trying to abort the trial or to seed the

record with reversible error, either of which showed that Duong understood the

nature of the proceedings. See Tex. Crim. Proc. Code Ann. art. 46B.003(a); Cantu,

253 S.W.3d at 282. The evidence was insufficient to show a bona fide doubt about

Duong’s competency to stand trial. See Moore, 999 S.W.2d at 393.



                                          17
      Regarding a disruptive defendant, the court of criminal appeals has written,

“While appellant’s comments were inappropriate violations of court decorum, they do

not constitute evidence of his inability to communicate with counsel, or factually

appreciate the proceedings against him.” Id. at 395. “To the contrary,” the court

continued, “appellant’s outbursts were timely, topical, and logically related to the

questions and answers offered during the examination of other witnesses.” Id. The

court concluded, “We reject appellant’s contention that his unruly and disruptive

courtroom demeanor are probative of incompetence to stand trial. If such actions

were probative of incompetence, one could effectively avoid criminal justice through

immature behavior.” Id. We agree. On this record, the trial court could reasonably

conclude that it was facing a disruptive but competent defendant intent on stopping

the trial; we thus hold that the trial court did not abuse its discretion by not having a

competency hearing.

      We overrule Duong’s fourth issue.

                                      Conclusion

      Having overruled Duong’s issues, we affirm the trial court judgments.




                                           18
                                /s/ Elizabeth Kerr
                                Elizabeth Kerr
                                Justice

Do Not Publish
Tex. R. App. P. 47.2(b)

Delivered: July 25, 2019




                           19
                                    APPENDIX

I. March 19, 2018 (Voir Dire)

      Before voir dire, the State made a plea-bargain offer that Duong, defense

counsel, and the court discussed on the record and that Duong ultimately refused.

When the trial court asked defense counsel if he wanted to put anything else on the

record, counsel responded that Duong had just informed him that he wanted a

different attorney and wanted to hire private counsel. Because the case had been

pending about a year and because the trial was set to start in an hour, the trial court

declined to give Duong more time to hire an attorney and informed Duong that

unless he hired new counsel within the next hour, Duong’s trial was proceeding with

his current lawyer.

      The trial court then asked whether Duong was competent to proceed, and

defense counsel asserted that Duong was. But defense counsel also put on the record

that Duong, against counsel’s advice, had requested not to be present during voir dire.

      During that discussion, Duong returned to the issue of hiring new counsel and

decried the unfairness of not giving him more time to do so, to which defense counsel

responded, “This is the first time I’ve ever heard him actually articulate to me he

wishes for me to withdraw.” Defense counsel continued, “He told me earlier today

he’s not dissatisfied with me, but he would feel more comfortable with his own

lawyer.” When Duong grumbled again about having only an hour to hire new counsel,

defense counsel said, “Well, I understand that. But I cannot get into the conversations

                                          20
I’ve had with my client. I just did want an opportunity to say I intend to do my very

best for him.” Counsel added, “I have not heard any complaints in my performance

and I heard the opposite of it even as recently as an hour ago.” Duong countered that

he had written to defense counsel back in December 2017 asking him to withdraw but

that defense counsel had never replied. The trial court noted that the present trial had

been set back in January 2018, and ended the new-attorney discussion with these

comments: “You have one of the best lawyers in the State of Texas. So he tells me

he’s ready for trial, and so we’re going to go to trial today.”

       When the discussion returned to whether Duong wanted to remain in the

courtroom for voir dire, Duong persisted in his request to not be present. So that

Duong could listen to the proceedings, the trial court set up a monitor in Duong’s

holding cell.

II. March 20, 2018 (The First Day of Testimony)

       Duong did not engage in any disruptive behavior during the first day of

testimony.

III.   March 21, 2018 (The Second Day of Testimony)
   A. The Day Begins
       THE COURT: Right here, sir. Good morning.

       THE BAILIFF: Hands behind your back.

       THE COURT: How are you, Mr. Duong?

       THE DEFENDANT: (Moving head side to side[.)]


                                            21
THE COURT: How are you this morning?

THE DEFENDANT: I was in a suicide watch tank. How do you think I
am.

THE COURT: I heard that. I’m just checking on you this morning.

       So, we’re about to start the trial. And you, you know, obviously,
you have the right to be out here during the trial. If you don’t want to be
out here during the trial, you don’t have to be. That’s your choice. And
also, what you wear if you are out here is your choice as well.

      So, I’m hearing, and correct me if I’m wrong, that you do want to
be out here, but you don’t want to put on your other clothes, you want
to wear what you have on. Is that right?

THE DEFENDANT: Yeah.

THE COURT: And you understand that that could hurt you with the
jury. And so understanding that it could hurt your case, you still want to
wear what you have on, which is the jail clothing. And it’s not even just a
regular jail clothing, it’s the safety clothing because of I guess what
happened last night. Is that—do you understand that?

THE DEFENDANT: (Moving head up and down[.)]

THE COURT: I can’t hear you.

THE DEFENDANT: Yes.

THE COURT: So basically you would be waiving your rights to have the
jury not know that you’re in jail because right now they don’t know
you’re in jail. So, obviously, if you came out like that, they would know
that you’re in jail, which is fine if that’s what you—if that’s what you
decide.

       I just want to make sure you understand that if you do come out
that way, it’s not going to be an issue to appeal because you’re basically
waiving it. But if you put on your regular clothes, they won’t know that
you’re in jail. Okay. So, but it’s your decision.

      So do you want to come out here in regular clothes or do you
want to come out here in those clothes?

                                    22
THE DEFENDANT: I’m going to wear this.

THE COURT: All right. I just want to be clear on the record so that
everything that—that’s your decision even though you know that it
might hurt you in trial.

THE DEFENDANT: (Moving head up and down[.)]

THE COURT: Okay? Is that your understanding?

THE DEFENDANT: Yes.

THE COURT: Anything else?

[DEFENSE COUNSEL]: Judge, I just had a few questions.

THE COURT: Sure.

[DEFENSE COUNSEL]: [Duong], I can’t talk to you about anything
we’ve talked about in this courtroom because that violates certain
privileges, so I’m just going to ask you now.

       If I were to tell you now that I believe coming out in your present
clothing is the biggest mistake of your life and you are virtually going to
convict yourself and literally beg you to wear civilian clothing, will that
change your mind?

THE DEFENDANT: No.

[DEFENSE COUNSEL]: Okay. You expressed to me that you’re
concerned about my performance; is that true?

THE DEFENDANT: I’ve been telling you this.

[DEFENSE COUNSEL]: Okay. Well, this morning you did?

THE DEFENDANT: I’ve been telling you I don’t want you as my
attorney.

[DEFENSE COUNSEL]: Okay. In any event, you understand we’re
about to proceed with the rest of your trial and we expect that there are
going to be some other witnesses that the State are going to call. Do you
understand that?


                                    23
THE DEFENDANT: Yeah.

[DEFENSE COUNSEL]: Nothing more at this point, Your Honor.

THE COURT: Okay. Anything else from the State?

      Sure. Have a seat right over there.

(Discussion off the record.)

[DEFENSE COUNSEL]: Your Honor, may I make another few more
statements on the record that I think would be pertinent on appeal if this
gets that far.

THE COURT: Sure.

[DEFENSE COUNSEL]: Your Honor, I’ve seen Mr. Duong in various
court settings, in other settings for nearly ten months. He’s always had
an understanding what a court is, what the purpose of this trial is, the
impact it can have upon his liberty. He has talked to me about various
sophisticated issues regarding physical evidence, whether it be
fingerprint and alibi and whereabouts. I have never had an indication
that I felt he did not understand what was going on.

       I do at this point have concerns about his mental health, and so I
cannot make any representation to the Court at this point that I have any
concerns about his competence. But in an abundance of caution with
this particular issue here, I would bring it to the Court’s attention that I
guess there is a question about his mental health. But I do not have any
facts that would lead me to believe that he does not understand the
proceedings against him or that he could not assist in his own defense.

THE COURT: Right. And he clearly just stated that he’s competent
enough to know that he doesn’t want you as his lawyer.

[DEFENSE COUNSEL]: Yes, sir.

THE COURT: So he’s making decisions. And if he chooses not to help
you, that doesn’t make him not—not competent.

[DEFENSE COUNSEL]: Yes, sir.




                                    24
  THE COURT: I mean, he’s demonstrated all the way through that he
  understands where we are, what we’re doing, his decisions about what he
  wears, he’s very, you know, articulate about that and understands the
  risks.

  [DEFENSE COUNSEL]: Yes.

  THE COURT: And so, I don’t have a question as to his competency.

  [DEFENSE COUNSEL]: Thank you.

         And just the last thing on the record. I’ve also received no
  indication of hearing voices or any delusional behavior or anything else
  that what I—that I would feel would raise an obligation that I would
  have to request a motion for competency at any point in our
  representation.

  THE COURT: All right.

  THE DEFENDANT: How would you know any of this?

  THE COURT: I didn’t ask you to talk.

        Anything else from the Defense?

  [DEFENSE COUNSEL]: We have another motion that’s not related to
  this issue that we wish for the Court to pass on that I filed.

  THE COURT: Okay.

B. The Jury Enters the Courtroom

  THE COURT: I just wanted to make sure they were back there.

        Okay. Let’s bring in the jury.

  (Jury seated in the courtroom at 9:20 a.m.)

  THE COURT: Thank you. Please be seated. And—

  THE DEFENDANT: I tried to kill myself this morning and they still—

  [DEFENSE COUNSEL]: Objection, Your Honor.


                                         25
   THE COURT: You need to be seated, sir.

         You may proceed.

C. While the First Witness is Testifying

   [DEFENSE COUNSEL]: Your Honor, may we approach the Bench
   real quickly? I’m sorry.

   THE COURT: Yes.

   (At the Bench, on the record.)

   [DEFENSE COUNSEL]: Sorry, my client is repeatedly requesting to go
   to the bathroom and threatening to walk into the holdover . . . .

   THE COURT: All right.

   (Bench conference concluded.)

   THE COURT: Let’s take a short break, if the jury will retire to the jury
   room, please.

   [DEFENSE COUNSEL]: Thank you, Judge.

   (Jury leaves the courtroom at 9:46 a.m.)

   [DEFENSE COUNSEL]: Thank you, Your Honor.

   (Recess from 9:46 a.m. to 10:05 a.m.)

   (Open court, Defendant and jury not present.)

   THE COURT: So we’re on the record outside the presence of the jury.
   I’ve been made aware that the Defendant does not wish to be in the
   courtroom, so we’ll proceed in that fashion. Both sides ready for the
   jury?

   [SECOND PROSECUTOR]: Baby monitor.

   THE COURT: We’ve got the monitor so he can hear everything that’s
   going on.

   [DEFENSE COUNSEL]: Okay. Yes, sir. Defense is ready to proceed.

                                      26
      THE COURT: Okay. Let’s bring in the jury.

      (Jury seated in the courtroom at 10:05 a.m.)

      THE COURT: All right. Thank you. Please be seated.

   D. That Afternoon

      Around 2:00 p.m., defense counsel put on the record that he had conferred

with Duong and that Duong did not want to leave the holdover cell.

   E. After the State Rests

      After the State rested, the trial court excused the jury and had Duong brought

before him.

      (Defendant present.)

      THE COURT: Okay, sir.

              Let’s have him have a seat right there.

              And the Defense may proceed.

      [DEFENSE COUNSEL]: [Duong], I wanted to ask you a few questions
      because you have rights under our system that I cannot waive or
      enforce. I had spoken to you earlier, but more important I wanted to let
      you know now we are at the part of the trial where if you wanted to
      testify it would be appropriate to do so.

            And I wanted to begin by asking if you—if you understand you
      have every right to take the witness stand in this case and give an
      account and your side of the story in this trial.

      (No response.)

      [DEFENSE COUNSEL]: If I were to ask you to please answer the
      question, would you do so, sir?

      (No response.)



                                           27
THE COURT: What’s—restate the question.

[DEFENSE COUNSEL]: My question is, does he understand.

        Do you understand, [Duong], that you have every right to testify
in this trial?

(No response.)

THE COURT: Do you understand that, sir?

(No response.)

THE COURT: Okay. He’s unwilling to participate, so.

[DEFENSE COUNSEL]: May I just ask one or two more questions just
for the record.

THE COURT: Sure.

[DEFENSE COUNSEL]: I don’t want to belabor anything.

       [Duong], did I discuss this with you a few moments ago and you
stated to me you did not want to testify when you were back in the
holdover?

(No response.)

[DEFENSE COUNSEL]: I have nothing else, Your Honor. I don’t
know where else to proceed.

THE COURT: Okay. All right. Mr. Duong, do you have any questions
for me?

(No response.)

THE COURT: Okay. I’ll take it by your silence that you do not.

[DEFENSE COUNSEL]: Your Honor, do you want me to inquire
about separation of the jury?

THE COURT: Sure, hold on one second, sir.

      Go ahead.

                                  28
[DEFENSE COUNSEL]: Mr. Duong, I have to ask you, are you willing
to allow this jury to separate during deliberations? We expect there’s
going to be a closing argument and they will decide whether you are
guilty or not. Are you willing to allow them to go home if they do not
reach a conclusion by the end of business hours today?

(No response.)

THE COURT: Okay. Thank you.

[DEFENSE COUNSEL]: Thank you, Judge.

(Defendant removed from the courtroom.)

[DEFENSE COUNSEL]: Your Honor, may I put a few things on the
record just so it reads clearly.

THE COURT: Sure.

[DEFENSE COUNSEL]: First and foremost, and your response has
seemed to make clear, but just in case there’s any question, my client did
not answer any of my questions whether it had to do with separation or
a willingness to testify. This is the first time that he has not spoken to me
with repeated questioning.

       Once again, I want to reiterate I have never received indication
that he doesn’t understand what’s going on around him. I have no right
to say whether this is a ploy or not, but I can tell you that I have seen
nothing that has shaken my confidence that we are legally obligated and
prepared to—to proceed to trial.

      And so, with that, I—the document I’m going to want to submit
as an offer of proof at some point while the jury is deliberating to talk
about the number of times he’s been visited by myself and other
professionals within our firm and some of his behavior during the
pendency of this matter.

THE COURT: Okay.

[DEFENSE COUNSEL]: Not only at trial.

THE COURT: All right.


                                     29
      [DEFENSE COUNSEL]: Thank you, Judge.

   F. After the Jury Retires to Deliberate

      After the jury retired to deliberate, it sent a note requesting to listen to and

watch some of the recordings, and the trial court decided to have the jurors do so in

the courtroom on the following day.

IV.   March 22, 2018 (The Jury Renders Guilty Verdicts; the Punishment
      Phase Starts)

   A. The Day Begins

      THE COURT: . . . . So have we inquired of the Defendant if he wants to
      be out here during this?

      [DEFENSE COUNSEL]: He said he wants to come out today and he
      said he wants to dress out. The bailiffs have expressed a security concern
      about him dressing out. But this morning he wants to be out here.

      THE COURT: Is he ready to come out?

      THE BAILIFF: He’s still in his moo-moo.

             Up to you, your call. Security-wise I don’t think we should put
      him in regular clothes just because I think he’ll try to hang himself back
      there. We do have officers keeping an eye on him back there, though.

      THE COURT: And that’s due to some things he did two nights ago?

      THE BAILIFF: Yes, sir. He tried to kill himself already by cutting his
      wrist even though it’s superficial, no stitches needed.

      THE COURT: [Defense counsel], do you want him out here?

      [DEFENSE COUNSEL]: My preference is for this I don’t think he
      needs to be out here. You know what I mean. I didn’t—I don’t know
      that it’s a constitutional import that he’s present for the jury to watch
      something that we can’t present evidence or attack or cross-examine or
      do anything with. I mean, we’re stuck just watching it with them, I guess.


                                         30
  THE COURT: What’s the State’s position?

  [FIRST PROSECUTOR]: I would agree that if the Court has some
  security concerns about his presence, that we could turn the baby
  monitor on so that he could hear the evidence that was being played for
  the jury.

          I think there’s also, based on his behavior the last time we saw
  him in the courtroom yesterday, I think there is some potential concern
  about outbursts from him in front of the jury, which at this point in the
  trial since all the evidence is closed, I’m not sure what the cure would
  necessarily be or the remedy if he does make some type of outburst.

  THE COURT: Right. Okay. And the jury has been instructed to not
  consider his previous outburst and this isn’t—this isn’t new evidence or
  testimony. So, we’ll do the baby monitor right now so he can hear what’s
  going on back there. And then if and when there’s any other evidence
  and if there’s another phase, then we can either bring him out the way he
  is or change his clothes. Okay.

  [DEFENSE COUNSEL]: And the formal position just from the
  Defense, we have no objection with the baby monitor. We believe that
  allows sufficient presence with the proceedings for my client.

  THE COURT: Okay. All right. Let’s bring in the jury.

B. While the Jurors Review the Recordings

  (911 Recordings played.)

  (Defendant yelling from holdover cell.)

  THE DEFENDANT: I wanted to be in court. I told my attorney I
  wanted to be in court.

  THE COURT: All right. The jury can go in the jury room, thank you.

  (Jury leaves the courtroom at 9:12 a.m.)

  THE DEFENDANT: I told you I wanted to be in court. Told you I
  wanted to come out.




                                     31
   THE COURT: So there was just . . . one 911 tape that needs to be
   called.

   [FIRST PROSECUTOR]: You can send the disk back.

   THE DEFENDANT: I want to go to court.

   THE COURT: And let’s go ahead and do that.

   [FIRST PROSECUTOR]: And, Judge, we would request that we be able
   to send back all of the evidence that they requested in the event that they
   would like to view it again in light of the—

   THE COURT: Yes, we will do that.

   [SECOND PROSECUTOR]: Will the record reflect the outburst?

   THE COURT: Yes.

   THE DEFENDANT: I want to go to court. I want to go to court. This
   is—

   THE COURT: Can we put him on a different floor?

   THE BAILIFF: Yeah, you bet you.

   [DEFENSE COUNSEL]: I’m going to talk to him and inform him of
   what’s going on.

   (Recess at 9:15 a.m. until 9:29 a.m.)

C. After the Jurors Return to the Jury Room

   THE COURT: Go ahead.

   [DEFENSE COUNSEL]: Thank you, Your Honor.

          First and foremost, I don’t know if the record showed it or not,
   but when the jury was viewing some requested exhibits pursuant to note
   number one about 15 to 20 minutes ago, my client was verbally yelling
   that he wanted to be in the courtroom, and it was so loud that the Court
   immediately asked for the jury to go into the jury room. Right after that
   he was highly critical of me and wanted to fire—


                                           32
THE COURT: Brittany, hold on.

[DEFENSE COUNSEL]: I wanted to express—

THE COURT: [Deputy], tell her to hold on.

[DEFENSE COUNSEL]: Oh, sorry. That it was because of an outburst
like that, that was the thinking behind me not wanting him being present
while the jury was in effect deliberating in the courtroom watching
exhibits.

....

THE COURT: And—and the Court will inquire, any of those meetings
you’ve had with him, with you or your office or your investigator, there’s
never been a concern on your part of his competency; is that correct?

[DEFENSE COUNSEL]: There has never been.

THE COURT: All right.

[DEFENSE COUNSEL]: Unfortunately, there seems to be a pattern
that—first off, I have not heard of any mental concerns until yesterday
he articulated to me for the first time. But even among those
conversations, I’ve never seen any demonstration of a confusion as to
the proceedings, a confusion as to what he’s accused of, or any problems
with the strategy.

       He has consistently maintained that he is not the shooter and
he—I suspect that his behavior is a reaction expressing the appreciation
for these proceedings that he has, that it flies in the face of the idea that
he’s incompetent.

THE COURT: He’s just been consistently disruptive.

[DEFENSE COUNSEL]: Yes, sir. And I would say that—and I don’t
mean to betray my client, but it appears that the severity of the
disruption seems to be in proportion to the level of evidence that the
State has put into the record.

THE COURT: Right. And when he comes out later, whenever we—if
we go to another phase, I’ll make it clear that he has been disruptive, and


                                     33
  if he wishes to be out here, this is pretty much his third chance to not be
  disruptive. And if he is again, then he won’t come back.

  [DEFENSE COUNSEL]: Yes, sir. And I don’t know if—and if I did
  this yesterday, forgive me. Yesterday in a proceeding he was present and
  he exclaimed that he had made a suicide attempt loud enough that I
  think everyone in the courtroom could hear. But I think the record
  would also reflect he tried to show his wrists in an effort to show
  purported injuries of that suicide attempt.

  THE COURT: Right. Yes.

D. The Court Learns that the Jury has Rendered Verdicts

  (Open court, Defendant present, jury not present.)

  THE COURT: You can sit by the table.

         Okay. We’re outside the presence of the jury. The jury has
  notified us they have reached verdicts in both cases.

  Mr. Duong, do you want to be out here for the verdicts or not?

  THE DEFENDANT: (Moving head side to side[.)]

  THE COURT: You do not? I can’t hear you?

        You shook your head no, is that a no?

  THE DEFENDANT: (Moving head side to side.)

  THE COURT: Okay. I’ll take it as a no. All right. Thank you very much.

  [DEFENSE COUNSEL]: Your Honor, I’m so sorry. If the verdict is
  guilty, we’re going to go into a punishment proceeding.

  THE COURT: Correct, yes.

  [DEFENSE COUNSEL]: I take it that he’s not wanting to be present
  for that.

  THE COURT: Hold on a second. I’ll ask it in that fashion.



                                      34
      Mr. Duong, if it is a guilty verdict, do you want to be out here for
the punishment phase or not?

(No response.)

THE COURT: I’ll take it by your silence you do not.

      Off the record.

(Discussion off the record.)

(Open Court; Defendant and jury not present.)

THE COURT: Let the record reflect that he is banging and making a
bunch of noise, so I’m not going to have him here on this floor. Any
objection to that?

[DEFENSE COUNSEL]: May I have—may I talk to him for
30 seconds?

THE COURT: Sure.

[DEFENSE COUNSEL]: Just in case he claims that it’s because he has
something to tell me.

THE COURT: All right.

(Recess at 10:07 a.m. until 10:08 a.m.)

(Open court, Defendant and jury not present.)

[DEFENSE COUNSEL]: Your Honor, he has stopped talking to me.
And he—I asked him specifically can you assure me you won’t make any
disruptions, I think you’re hurting your case, he did not give me any
answer to that question.

THE COURT: Okay.

[SECOND PROSECUTOR]: Can the record reflect that he resumed
kicking after [defense counsel] talked to him?

THE COURT: Yes.



                                    35
V. March 23, 2018 (The Punishment Trial Resumes)

  A. The Day Begins

     (OPEN COURT; DEFENDANT AND JURY NOT PRESENT)

     THE COURT: Ready?

     [DEFENSE COUNSEL]: Yes. If I can just state on the record, Your
     Honor, very quickly. I went to the county court holdover on the same
     floor of this building just a moment ago and tried to make contact with
     my client Son Duong. He would not answer me. I specifically asked him
     if he wished to be present, he would not answer.

            I explained to him he had a right to testify and asked whether he’d
     like to testify, he would not answer. And I asked if there’s anything I
     could do on his behalf and he would not answer. So he’s expressed a
     desire not to be present or participate, Judge.

     THE COURT: Okay.

  B. After the Jury Retires to Deliberate

     THE COURT: Mr. Duong, we have a—

     THE DEFENDANT: You’re breaking my arm.

     THE BAILIFF: Relax.

     THE DEFENDANT: You’re breaking my arm right now.

     THE BAILIFF: I’m not breaking your arm.

     THE DEFENDANT: Yes, you are.

     THE BAILIFF: No, I’m not.

     THE DEFENDANT: You’re breaking my arm right now.

     THE BAILIFF: I’m not breaking your arm.

     THE DEFENDANT: I am relaxed.

     THE BAILIFF: Okay. I am too.

                                        36
THE DEFENDANT: No, you’re not, you’re breaking my arm right
now.

THE BAILIFF: No, if I crank down on it I will.

THE DEFENDANT: You’re breaking my arm right now.

THE BAILIFF: I’m not either.

THE COURT: Okay.

THE DEFENDANT: I’m not even—I’m not even . . . flexing, okay.

THE BAILIFF: Okay. I’m not clamping down.

THE DEFENDANT: Yes, you are.

THE BAILIFF: No. If I clamp down, you’ll know it.

THE DEFENDANT: You’re breaking my arm right now.

THE COURT: Okay.

THE BAILIFF: Listen up to what the Judge is telling you.

THE COURT: So, Mr. Duong, we have a verdict. And are you going to
be able to behave so that you can be in the courtroom?

THE DEFENDANT: You’re breaking my arm.

THE BAILIFF: No, I’m not.

THE DEFENDANT: Yes, you are.

THE COURT: Okay. Go ahead and put him back.

(Defendant leaves courtroom.)

THE COURT: All right. So we’ve got the monitor set up? So the
monitor is set up; is that correct?

THE BAILIFF: Let me double-check.




                                  37
      THE COURT: So let the record reflect when the Defendant was
      brought into the courtroom to receive the sentence from the jury, he
      was actively resisting.

            Deputy . . . , is that correct?

      THE BAILIFF: Yes.

      THE COURT: And if you had let—let go of him, what was your
      concern?

      THE BAILIFF: Well, that he would charge or stand or do something
      disruptive in that way to get—

      THE COURT: So.

      THE BAILIFF: Or even tried to head butt me while I had him in the
      wristlock, which doesn’t cause any harm to him.

      THE COURT: So I’m going to find that he’s voluntarily absented
      himself again from the proceedings. We do have the monitor set up
      where he can hear the verdict and receive the verdict as it’s read from
      the holdover.

             But we’ve—throughout this whole trial we have attempted to give
      this Defendant every opportunity to be in the courtroom, and he has
      chosen time and time again to disrupt and—and now resist even being
      brought into the courtroom. So we’re going to go ahead and receive the
      verdict at this time.

VI.   March 28, 2018 (Sentencing with Duong Present)

      Duong appeared before the trial court, and the trial court sentenced him. When

the trial court asked Duong if he understood his sentences and his appellate rights,

Duong refused to respond.




                                              38
