                                                                      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
