                                                                                                            ACCEPTED
                                                                                                        14-14-00942-CV
                                                                                        FOURTEENTH COURT OF APPEALS
                                                                                                     HOUSTON, TEXAS
                                                                                                 10/22/2015 11:07:03 PM
                                                                                                  CHRISTOPHER PRINE
                                                                                                                 CLERK



                                               14-14-00942-CV
                                                                                       FILED IN
======================================================================================================
                                                                              14th COURT OF APPEALS
                                                                                   HOUSTON, TEXAS
     IN THE FOURTEENTH COURT OF APPEALS                                       10/22/2015 11:07:03 PM
               HOUSTON, TEXAS                                                  CHRISTOPHER A. PRINE
                                                                                       Clerk

==========================================================

                                 Aloysius Duy-Hung Hoang
                                   aka Hoang Duy Hung,
                                                                            Appellant
                                                 vs.
                                       Thinh Dat Nguyen
                                       Thoi Bao Houston,
                                          Thoi Bao,
                                                                            Appellees
          --------------------------------------------------------------------------------
                     Appeal from the 215th Judicial District Court
                            Houston Harris County, Texas
         ---------------------------------------------------------------------------------
                           APPELLANT's AMENDED BRIEF
----------------------------------------------------------------------------------------------------

                                                       Aloysius Duy-Hung Hoang
                                                       Pro se
                                                       State Bar number 2400-2295
                                                       801 Congress St #350
                                                       Houston TX 77002
                                                       Tel. 281-788-8486
                                                       Fax 713-224-3111
                                                       Email: Alhoang77072@Gmail.com


                      ORAL ARGUMENT IS NOT REQUESTED
******************************************************************************


                                                                                                    1
                         IDENTITY OF PARTIES AND COUNSEL

Appellant/Plaintiff

      Aloysius Duy-Hung Hoang aka Al Hoang aka Hoang Duy Hung

Counsel for Appelant

      Al Hoang, pro se


Appellees/Defendants

      Thinh Dat Nguyen,        an individual.
      Thoi Bao Houston,        a Vietnamese magazine published in Houston.
      Thoi Bao,                a Vietnamese Magazine published in Canada and
                               the United States of which Houston Thoi Bao is a
                               part of the chain.

Counsel for Appellees

      Mark Bennettt
      SBN 0079-2970
      Bennett & Bennett
      917 Franklin Street, Fourth Floor
      Houston TX 77002
      Tel. 713-224-1747
      Email: mb@ivi3.com




                                                                                  2
                                      TABLE OF CONTENTS

                                                                                                                  Page

IDENTITY OF PARTIES AND COUNSEL .............................................                                      2

INDEX OF AUTHORITIES ......................................................................                        4

STATEMENT OF THE CASE ..................................................................                           5

ISSUES PRESENTED ..............................................................................                    6

STATEMENT REGARDING ORAL ARGUMENT ...............................                                                  7

STATEMENT OF FACTS ................................ .....................................                          8

SUMMARY OF ARGUMENT ...............................................................                                12

ARGUMENTS                 .....................................................................................    12

        First issue               ...........................................................................      12

        Second issue                        .................................................................      16

        Third issue               ...........................................................................      18

        Fourth issue                        .................................................................      20


CONCLUSION AND PRAYER ...............................................................                              21

CERTIFICATE OF COMPLIANCE .........................................................                                22

CERTIFICATE OF SERVICE ..................................................................                          22

                                                 APPENDIX

1.      COURT'S RECORD [CR]
2.      REPORTER'S RECORD [RR]



                                                                                                                         3
                             INDEX OF AUTHORITIES

                                                                                        PAGE

                                     STATUTES:

1.   Texas Citizens Participation Act (the "Texas Anti-SLAPP statute")
     Texas Civil Practice & Remedies Code, Chapter 27 .....................             12

2.   Texas Civil and Remedy Code, Sec. 154.073 (a)          .........................   21

                                        CASES:

Hearst Corp. vs. Skeen, 130 S.W. 3d 910 (Tex. App. 2004)                        .....   13

Musser vs. Smith Protective Services Inc., 723 S.W. 2d 653, 655
                                            (Tex. 1987) ......................          12

Spanel et al. vs Pegler, 160 F (2d) 619, A.L.R. 699 (Fed. Ct., 1947) .....              18


                 INDEX OF AUTHORITIES FOR REFERENCE

Burrell vs. Moran et al, 82 N.E. (2d) 334 (Ohio, 1948)                         ......   18

Hoai Thanh vs. Hien Thi Ngo and Vietnamese Public Radio Inc.,
CASE No: AW 05 CV 3420                                   ...........                    19

Bui vs. Do, D-1-GN-09-001567 in Travis County                           .............   20

Nguoi Viet News, Inc., vs. Saigon Nho Newspapers,
30-2012-00595526 in the Superior Court of Orange County, California                     20




                                                                                             4
TO THE HONORABLES FOURTEENTH COURT OF APPEALS:


                            STATEMENT OF THE CASE

Nature of the case          This is an appeal from the Trial Court Motion To

                            Dismiss brought by Appellees. On October 13,

                            2014, Appellant filed a Defamation lawsuit

                            against Appellees. [CR. 4]. On October 21, 2014,

                            Appellees filed the Answer and Motion To

                            Dismiss. [CR. 15].


Trial Court                 215th Judicial District Court of Harris County, TX.


Trial Court's disposition   On November 18, 2014, the Trial Court Granted

                            Defendants' Motion to Dismiss based on Texas

                            Citizens Participation Act (the "Texas Anti-

                            SLAPP     statute"),   Texas   Civil   Practice   &

                            Remedies Code, Chapter 27. [CR 323]




                                                                              5
                          ISSUES PRESENTED

I.    Did the District Court err in holding that Defendants are entitled to

      dismissal under the Texas Citizens Participation Act (the "Texas Anti-

      SLAPP statute"), Texas Civil Practice & Remedies Code, Chapter 27

      when there are sufficient elements to show Defendants fabricated facts to

      libel Plaintiff?


II.   Did the District Court err when not considering Plaintiff's affidavit in the

      Original Petition as prima facie facts to establish elements of a

      Defamation case?



III. Did the District Court err when considering the label of someone as a

      "Communist," "Spy for the Communist," or "Communist Sympathizer"

      in an anti-Communist community like the Vietnamese Community as

      "may be wrongheaded, but is not illegal or disgraceful?"



IV. Did the District Court err when considering previous lawsuits filed by

      Plaintiff to various individuals in the last 10 years and later on through

      mediations dismissed them as a basis for dismissal in this case?




                                                                                6
                   STATEMENT REGARDING ORAL ARGUMENT

Appellant/Plaintiff does not request an oral argument.




                                                         7
                          STATEMENT OF FACTS


            "CR" means the Court's Record on Appeal.

            "RR" means the Reporter's Record.

      Appellee Thinh Dat Nguyen is a Texas resident. Thoi Bao Magazine is a

Vietnamese weekly magazine which has branches in Canada and in the United

States. Thoi Bao Houston Magazine is its branch in Houston. Nguyen is the

Editor-in-chief of Thoi Bao Houston and Thoi Bao in Texas. [CR 5].

      In 2010, after Hoang was elected as Houston District F City

Councilmember, Hoang was invited to Nguyen's house for dinner. During dinner,

Hoang disclosed that Hoang was invited by Houston Airport System Director

Mario Diaz to accompany him to Vietnam. Nguyen then ordered Hoang: "I order

you not to go to Vietnam. If you go, I will mobilize Thoi Bao to destroy you, to

take your council seat away." An argument broke out between Hoang and Nguyen,

Hoang left the house. After this event, almost in every issue of Thoi Bao, Nguyen

labeled Hoang as a Vietnamese Communist, an agent of the Vietnamese

Communist, or a spy of the Vietnamese Communist. [CR.6]

      Sometime in October, 2012, Vice Minister of Vietnam, Mr. Nguyen Thanh

Son, visited Houston. Mayor Anise Parker and her Administration, with Hoang,

welcomed the Delegation. A Forum was opened for Vietnamese freedom fighters

to come and make pressure on Vietnam to honor human rights as well as open up

                                                                               8
the door for multi-party system. Nguyen twisted the facts to label Hoang as

Vietnamese Communist Spy or an arm of the Vietnamese Communist to "sabotage

the Vietnamese Community in Houston and abroad." Nguyen did not libel Anise

Parker and her Administration as Communists. Because of such libel, many

Vietnamese people, especially the seniors who do not read English and read only

Vietnamese, believe that Hoang is a Communist, and they organized protests in

front of Hoang's residence and a cocktail bomb threat was put in front of Hoang's

house. [CR 7].

         In early 2013, on behalf of the City of Houston, Hoang made a tour to Asia

countries such as Japan, Taiwan, Indonesia, and Vietnam to enhance the business

relationship of those countries with Houston and the Port of Houston. Nguyen

ignored the trips to Indonesia, Taiwan, and Japan to concentrate only on the trip to

Vietnam to libel Hoang as Vietnamese Communist working for the Vietnamese

Communist government. [CR 7].

         Hoang publicly announced numerous times that he would welcome for an

open interview or debate. Nguyen and his group ignored. [CR 8 and RR 9 lines 22

- 25]

        Hoang won the Republican primary in 2014 to run for State Representative

District 149. Nguyen had articles to support the Democratic candidate Hubert Vo.




                                                                                  9
Again, almost every issue, Nguyen libeled Hoang as a Vietnamese Communist.

[CR 7].

    In issue 412 of early October, 2014, Nguyen ran the headline "NOT VOTING

FOR HOANG DUY HUNG" whereby he also turned the facts so that the readers

understand that because Hoang is a Communist, Hoang's father in 2007 committed

suicide by jumping into the moving truck. In fact, Hoang's father died because of

an undocumented immigrant who ran the red light and hit Hoang's father, he was

taken to Ben Taub and died. [CR. 8].

    In issue 413, midst of October, 2014, a week before the early voting of the

General Election, Nguyen ran the headline "UNMASK THE SPY FACE OF

HOANG DUY HUNG" whereby Nguyen published at least three false statements

about Hoang. Nguyen published statements affirming that Hoang is "a

Communist," "an insider working for the Vietnamese Communist regime,"

"planned a scheme to put a death threat bomb killing him and his family members

at his house and then called the police to blame on Vietnamese Nationalist

activists, afterward he took the pictures to take credit with the Vietnamese

Communists," and "his father was so shameful of the betrayal son whereby he

committed suicide by jumping himself to the oncoming 18-wheeler." [CR. 8 and

Affidavit CR 12].




                                                                               10
    After Plaintiff filed the Answer to Defendant's Motion to Dismiss, on

November 10, 2014, Nguyen published a statement on the Vietnamese e-forums as

follows: "I was sued for calling a communist a communist." Then he asked

supporters to come to Court to "witness the fighting spirit against the

Communist of the Vietnamese People Abroad, the victims of the Communist."

[CR. 123. RR 2 line 11-13].




                                                                           11
                        SUMMARY OF THE ARGUMENT



      The trial Court erred in dismissing the case in ruling that "the legal action

was brought to deter or prevent the Defendants from exercising Constitutional

rights and was brought for an improper purpose, including to harass or to cause

unnecessary delay or to increase the cost of litigation." [CR 323]. Constitutional

rights are the rights to opine, but not the rights to fabricate facts libeling other

person, and this is not protected either by the Constitution or by Texas Anti-Slapp

Statute.

                                  ARGUMENT


     I.    Did the District Court err in holding that Defendants are

           entitled to dismissal under the Texas Citizens Participation

           Act (the "Texas Anti-SLAPP statute"), Texas Civil Practice

           & Remedies Code, Chapter 27 when there are sufficient

           elements to show Defendants fabricated facts to libel

           Plaintiff?



      Does TCPR Chapter 27 applied to an Editor-in-chief of a magazine who

almost every issue labels Plaintiff a Communist flaring hatred within an Anti-

Communist Community against Plaintiff? The Legislature intent when passing

                                                                                  12
this Statute was to protect an individual to speak out the opinion on public issue by

writing to the Editor of a newspaper, testifying before the Legislature, reporting

official misconduct, circulating a Petition, or posting a comment on the internet. It

is quite ambiguous on the Legislature intent whether it should be applied to an

Editor-in-chief of a magazine in this matter.

      If TCPR Chapter 27 applied to Nguyen, then whether Nguyen is protected

under the Statute when Hoang can prove on prima facie the elements of

Defamation?

      The elements of Defamation are: 1. Defendant published a statement; 2. that

was defamatory concerning the Plaintiff; 3. while acting with either actual malice,

if the Plaintiff was a public figure, or negligence, if the Plaintiff was a private

individual, regarding the truth of the statement. Hearst Corp. vs. Skeen, 130 S.W.

3d 910 (Tex. App. 2004), review granted, judgment rev'd., 159 S.W. 3d 633 (Tex.

2005). In Musser vs. Smith Protective Services Inc., 723 S.W. 2d 653, 655 (Tex.

1987), the Court stated that "to prove an action for defamation, the statement must

also be false."

      1. Statement of facts published by Defendants concerning Plaintiff: In

this case, Nguyen published at least three false statements about Hoang. Nguyen

published statements affirming that Hoang is "a Communist," "an insider working

for the Vietnamese Communist regime," "planned a scheme to put a death threat



                                                                                   13
bomb killing him and his family members at his house and then called the police to

blame on Vietnamese Nationalist activists, afterward he took the pictures to take

credit with the Vietnamese Communists," and "his father was so shameful of the

betrayal son whereby he committed suicide by jumping himself to the oncoming

18-wheeler." [CR 121]. Defendant never stated that it was his opinion, but he

stated them as facts in the affirmative tone.



      2. The statements are false and defamatory: Hoang came to the United

States in 1975 when Plaintiff was 13. After graduating from the University of

Houston, in 1990, Hoang came back to Vietnam to fight against the Communist

and Hoang was imprisoned by the Vietnamese Communist for 16 months in

solitary confinement. In 1993, in order to have the normalization with the United

States, Vietnamese Communist had to release all U.S citizens of which Hoang was

one of them. In November 2007, Hoang was elected as President of the

Vietnamese Community of Houston & Vicinities. In 2009, Hoang was elected as

Houston District F City Councilmember. [CR 115].

      After September 11, 2001, Hoang changed the strategy in fighting against

the Communist. Hoang sees that there is no way to use force to overthrow the

Communist regime; therefore, Hoang promote "open dialogue" to make pressure

on Vietnam to honor human rights and to have political change. [CR 116].



                                                                                14
        In the capacity as the City elected official, together with the Mayor, Hoang

welcomed a Delegation from Vietnam, opened up a Forum for Vietnamese

Freedom Fighters to pressure on Vietnam for political changes and honoring

human rights [CR 7]. In early 2013, as a city elected official, Hoang visited 4

Asian countries to promote economic growth for the City of Houston and Vietnam

was one of the four countries. [CR. 7].

        Labeling Hoang as a "Communist" or "insider working for the Communist

regime" is not only an insult, but also a defamation flaring hatred within an anti-

communist community against Hoang. Labeling Hoang to plan "a scheme to put a

death threat bomb killing him and his family members at his house and then called

the police to blame on Vietnamese Nationalist activists, afterward he took the

pictures to take credit with the Vietnamese Communists" [CR 121] is a defamation

turning a victim into the criminal mastermind. Making a false statement that "his

father was so shameful of the betrayal son whereby he committed suicide by

jumping himself to the oncoming 18-wheeler" [CR 121] is not only an insult to the

decedent and to Hoang, but also a defamation discrediting Hoang in the public's

eyes.

        3. The statements are made with actual malice: Hoang has asked Nguyen

for a public debate, [CR 8], and if Nguyen can show a better way of fighting the




                                                                                  15
Vietnamese Communist, Hoang would immediately "kneel down and carry

Nguyen's shoes." [RR 9 lines 21-25].

      In his Original Pleading, Hoang stated that Hoang has asked Nguyen "to

stop the such libel, and if Nguyen has any question, Hoang is happy to entertain a

public interview forum. Hoang also informed him that by FCC rules, Nguyen has

to give Hoang equal space to correct the facts and Nguyen ignored." [CR 8].

Hoang     also   notified     the   owner   in   Toronto,    Canada,    by    email

davenguyent@gmail.com and left messages on the phone 416-624-7297 for him to

take appropriate steps but there was no return. [CR 8].

      There are fabrications of facts here, not opinions, published by the Nguyen

that Hoang can show on prima facie the elements of Defamation. The Statute only

requires the Plaintiff to prove on "preponderance of the evidence," not "beyond a

reasonable doubt" and the Statute requires the elements of the evidence are to be in

the Pleading and/or in the Affidavits. Hoang had it in his Original Pleading along

with the Affidavit [CR 12].


     II. Did the District Court err when not considering Plaintiff's

          affidavit in the Original Petition as prima facie facts to

          establish elements of a Defamation case?

     In the Original Petition, Hoang also filed an affidavit stating that "all the

statements of facts in Plaintiff's Original Petition is true and they are within my

                                                                                  16
personal knowledge. Defendants Thinh Dat Nguyen, Thoi Bao Houston, and Thoi

Bao Magazine published false statements of facts to libel Al Hoang as a spy of the

Vietnamese Communist, Al Hoang is a Communist, Al Hoang is a Communist

Sympathizer, or Al Hoang is working for the interest of the Vietnamese Communist

Government. These false statements of facts are one of the factors leading to Al

Hoang's lost of 2013 Election and it could be the same for 2014 Election." [CR

12].

       In answering Nguyen's Motion To Dismiss, Hoang also filed a certified

translation and the Affidavit of the translator as follows: "My name is Fawn D.

Nguyen. I am capable of making this affidavit. I am a certified translator from

Vietnamese to English and from English to Vietnamese. My Texas License number

is 930. The translation of Thoi Bao Magazine, issue 413, pages 36-37, the related

statements of the lawsuit, was under my supervision and I hereby certify that the

translation is true and correct from Vietnamese to English." [CR 121]



       Nguyen, during the hearing of the Motion to Dismiss, claimed that there was

no affidavit filed by Hoang to support the elements of a defamation case. Whether

the Court took this into consideration to dismiss the case is unclear; yet, on the

contrary, the affidavit was made and was properly submitted in the Original

Petition. [CR 12].



                                                                                17
     III. Did the District Court err when considering the label of

          someone as a "Communist," "Spy for the Communist," or

          "Communist Sympathizer" in an anti-Communist community

          like the Vietnamese Community as "may be wrongheaded, but

          is not illegal or disgraceful?"


      At the hearing of Nguyen's Motion to Dismiss, Nguyen's attorney turned in

the Brief. The Court should not take the Brief in consideration because it did not

provide Hoang a fair chance to answer [RR 13 lines 8-14]. In the Brief, Nguyen

stated "it may be wrongheaded, but is not illegal or disgraceful, to be a

communist." [CR 13] Maybe it is not disgraceful to various persons to be a

communist, but it is to Hoang.

      Half a century ago, in the United States, to label a person as a Communist, is

libel per se: "The fact that it may be legal to be a Communist or a Communist

sympathizer does not prevent such a charge from being libelous per se, as a

publication need not impute a crime to constitute a libel." Spanel et al. vs Pegler,

160 F (2d) 619, A.L.R. 699 (Fed. Ct., 1947). The Court in Burrell vs. Moran et

al, 82 N.E. (2d) 334 (Ohio, 1948), the Court also stated: ".. a large segment of our

populace attaches to the activities of Communists an odorous interpretation that

tends toward public aversion." After the Fall of Communism in Eastern Europe

and in the Soviet Union in the late 1980's and early 1990's, that kind of sentiment

                                                                                  18
may not be that deepened in the hearts of mainstream Americans, but it exists in

minority communities such as Vietnamese Community who has recently fled from

Communism and Vietnam is still under the yoke of Communist regime.

      For the past 40 years, many folks who were misunderstood as "Communist"

or "Communist sympathizer" in the Vietnamese Community were murdered or

were threatened to death. In December 2012, after Hoang was labeled as a

"Communist," there were couples of demonstration in front of Hoang's residence

and immediately there was a death-threat cocktail bomb was placed at Hoang's

door [CR 7].

      In the Vietnamese Community, a person is to be labeled or to be

misunderstood as a Communist, the livelihood of that person and family members

are in jeopardy, that person could hardly advance further to higher status. Because

Hoang was labeled and/or misunderstood as a Communist, Hoang lost the Election

in 2013 to a no-name at that time, Richard Nguyen [CR 7]

     Understanding the situation to be labeled as a Communist in the Vietnamese

Community, Courts all over the United States took the matter seriously and

allowed cases to go to trial. In Virginia, Hoai Thanh vs. Hien Thi Ngo and

Vietnamese Public Radio Inc., CASE No: AW 05 CV 3420, in the Federal

District Court, on October 21, 2011, the case was tried, the Court awarded $1

million punitive damages to Plaintiff for being called as a "Communist." Likewise,



                                                                                 19
in Texas, after the Anti-Slapp Law was in effective, in the case of Bui vs. Do, D-1-

GN-09-001567 in Travis County, on October 27, 2011, the Court granted 1.9

punitive damages in favor of Plaintiff because Defendant Michael Do labeled

Plaintiff Nancy Bui as a Communist or a Communist sympathizer. In the case of

Nguoi Viet News, Inc., vs. Saigon Nho Newspapers, 30-2012-00595526 in the

Superior Court of Orange County, California, On December 30, 2014, a Jury of

12 awarded the Plaintiffs $3,000,000 in damages and $1,500,000 in punitive

against Defendants for labeling Plaintiffs as Communist agents or Communist

sympathizers.



     IV. Did the District Court err when considering previous

          lawsuits filed by Plaintiff to various individuals in the last 10

          years and later on through mediations dismissed them as a

          basis for dismissal in this case?



      In the Motion to Dismiss, Nguyen asserted that Hoang in the last over 10

years, filed a couple of lawsuits and dismissed them. The facts and issues in those

cases are different. Those cases went through mediation, Defendants either agreed

to issue either an apology or Statements of Corrections, such as Defendant Free

Vietnam Government issued the Letter of Correction [CR 36], Defendant Anh Tai



                                                                                  20
Nguyen issued the Letter of Apology [CR 50], and to promote harmony, in

accordance to mediation rule, Hoang dismissed the cases. [RR p. 7]. Dismissing

lawsuits in accordance to Mediation Procedure cannot be used as a ground for the

Court dismissing this case. See Texas Civil and Remedy Code, Sec. 154.073 (a).

CONFIDENTIALITY OF CERTAIN RECORDS AND COMMUNICATIONS.:

"Except as provided by Subsections (c), (d), (e), and (f), a communication relating

to the subject matter of any civil or criminal dispute made by a participant in an

alternative dispute resolution procedure, whether before or after the institution of

formal judicial proceedings, is confidential, is not subject to disclosure, and may

not be used as evidence against the participant in any judicial or administrative

proceeding."




                        CONCLUSION AND PRAYERS



     The Trial Court's decision in dismissing the case sent out a wrong message to

the Community that Freedom of Speech also includes freedom to make up facts

libeling people. WHEREFORE, as premises considered, Appellant Al Hoang

respectfully requests the Court to reverse the Trial Court's decision, grant

Appellant an opportunity to have a fair trial, grant appellant such other and further



                                                                                   21
relief, at law or in equity, to which Appellant may by this pleading or proper

amendment thereto show himself justly entitled.



                                          Respectfully submitted



                                          _____________________________
                                          Hoang & Associates
                                          Aloysius Duy-Hung Hoang
                                          State Bar No. 24002295
                                          801 Congress St. #350
                                          Houston, TX 77002
                                          Telephone: 713/229-8900
                                          Telecopier: 713/224-3111
                                          pro se


                      CERTIFICATE OF COMPLIANCE

I certify that the word count in this entire document is 3545


                                          ________________________________
                                          Al Hoang

                         CERTIFICATE OF SERVICE

      I, Al Hoang, hereby certify that a true and correct copy of the above and
foregoing was served in accordance with the Texas Rules of Civil Procedure on all
counsel of record by placing same in the United States mail, certified mail, return
receipt requested, by hand delivery or by telecopier, on this the 22nd day of
October, 2015.


                                          _________________________________
                                          Al Hoang

                                                                                 22
APPENDIX 1
                                          ORIGINAL CLERKS RECORD

                                                    VOLUME I                              FILED IN
                                                                                   14th COURT OF APPEALS
                                     APPELLATE COURT NO. 14-14-00942-CV                HOUSTON, TEXAS
                                                                                   2/3/2015 11:49:24 AM
                                                                                   CHRISTOPHER A. PRINE
ALYOSIUS HOANG AKA HOANG DUY HUNG                                                           Clerk
  APPELLANT(S)

   VS.                                      TRIAL COURT NO. 2014-59665

THINH DAT NGUYEN INDIVIDUAL THOI BAO HOUSTON AND THOI BAO
  APPELLEE(S)



FROM THE 215TH District Court of Harris County, at Houston, Texas

HON. ELAINE PALMER, JUDGE PRESIDING.

Applied for by ALOYSIUS DUY-HUNG HOAN on 24TH day of NOVEMBER A.D., 2014 and delivered to the “FOURTEENTH”

COURT OF APPEALS A.D., 2014.

                                                   CHRIS DANIEL
                                                   Harris County, District Clerk



                                                   By: /s/PHYLLIS WASHINGTON
                                                           PHYLLIS WASHINGTON, Deputy
Attorney for Appellant:

ALOYSIUS DUY-HUNG HOAN
HOANG & ASSOCIATES
801 CONGRESS STE 350
HOUSTON, TX 77002

Attorney for Appellee:

MARK WILLIAM BENNETT
ATTY AT LAW
917 FRANKLIN ST 4TH FLR
HOUSTON, TX 77002




                                                                                                    1
INDEX

ALYOSIUS HOANG AKA HOANG DUY HUNG

VS.           NO. 2014-59665 #14-14-00942-CV

THINH DAT NGUYEN INDIVIDUAL THOI BAO HOUSTON AND THOI BAO
                                                                                                                                                                          PAGE

 COVER PAGE VOLUME I............................................................................................................................                           1


 INDEX ................................................................................................................................................................    2

 PLAINTIFFS’ ORIGINAL PETITION AND APPLICATION FOR TEMPORARY INJUNCTION
 ORDER FILED OCTOBER 13, 2014................................................................................................................                               4
 AL HOANG’S AFFIDAVIT ...........................................................................................................................                          12

 MOTION TO DISMISS UNDER THE TEXAS CITIZENS PARTICIPATION ACT
 FILED OCTOBER 21, 2014...............................................................................................................................                     15

 ANSWER FILED OCTOBER 21, 2014 ............................................................................................................                                18

 NOTICE OF HEARING ON PLAINTIFF’S AMENDED MOTION TO DISMISS
 UNDER THE TEXAS CITIZENS PARTICIPATION ACT FILED OCTOBER 27, 2014 ............................                                                                            20

 AMENDED MOTION TO DISMISS UNDER THE TEXAS CITIZENS PARTICIPATION ACT WITH
 EXHIBITS FILED OCTOBER 27, 2014 ...........................................................................................................                              21
 EXHIBIT A ........................................................................................................................................................       26
 EXHIBIT B ........................................................................................................................................................       34
 EXHIBIT C ........................................................................................................................................................       40
 EXHIBIT D ........................................................................................................................................................       46
 EXHIBIT E ........................................................................................................................................................       56
 EXHIBIT F ........................................................................................................................................................       104
 EXHIBIT G ........................................................................................................................................................       106
 EXHIBIT H ........................................................................................................................................................       111

 PLAINTIFF’S ANSWER TO DEFENDANTS MOTION TO DISMISS WITH AFFIDAVIT
 FILED NOVEMBER 10, 2014...........................................................................................................................                       115
 FAWN D. NGUYEN’S AFFIDAIT ................................................................................................................                               120

 PLAINTIFF’S SUPPLEMENTAL ANSWER TO DEFENDANTS MOTION TO DISMISS
 FILED NOVEMBER 13, 2014...........................................................................................................................                       123

 PROPOSED ORDER ON DEFENDANTS’ AMENDED MOTION TO DISMISS
 UNDER THE TEXAS CITIZENS PARTICIPATION ACT FILED NOVEMBER 14, 2014 ........................                                                                              129

 BRIEF IN SUPPORT OF AMENDED MOTION TO DISMISS UNDER THE TEXAS CITIZENS
 PARTICIPATION ACT WITH ATTACHMENTS FILED NOVEMBER 14, 2014.......................................                                                                        130
 AFFIDAVIT OF THINH DAT NGUYEN ....................................................................................................                                       140
 CASE LAW........................................................................................................................................................         142
 CASE LAW........................................................................................................................................................         161
 CASE LAW........................................................................................................................................................         167
 CASE LAW........................................................................................................................................................         172
 CASE LAW........................................................................................................................................................         194
 CASE LAW........................................................................................................................................................         257
 CASE LAW........................................................................................................................................................         264
 CASE LAW........................................................................................................................................................         268
 CASE LAW........................................................................................................................................................         278
 CASE LAW........................................................................................................................................................         299



 CASE LAW ........................................................................................................................................................        311




                                                                                                                                                                                 2
INDEX

ALYOSIUS HOANG AKA HOANG DUY HUNG

VS.           NO. 2014-59665 #14-14-00942-CV

THINH DAT NGUYEN INDIVIDUAL THOI BAO HOUSTON AND THOI BAO
                                                                                                                                                                   PAGE

 ORDER ON DEFENDANTS’ AMENDED MOTION TO DISMISS UNDER THE TEXAS CITIZENS
 PARTICIPATION ACT SIGNED NOVEMBER 18, 2014 ..............................................................................                                         323

 TRIAL COURT ACTIVITY INQUIRY SHEETS.............................................................................................                                  324

 TRIAL COURT ELECTRONIC DOCKET SHEET........................................................................................                                       325

 NOTICE OF APPEAL BY ATTORNEY ALOYSIUS DUY-HUNG HOANG
 FILED NOVEMBER 24, 2014...........................................................................................................................                326
 COVER PAGE TO NOTICE OF APPEAL .................................................................................................                                  328

 CERTIFICATE ...................................................................................................................................................   329

 BILL OF COSTS ................................................................................................................................................    330

COMPLETE ORIGINAL CLERKS RECORD. PW




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JURN7 (NSA#)    JUSTICE INFORMATION MANAGEMENT SYSTEM      JAN 16, 2015(C1)
ACT50                    CIVIL COURT ACTIVITY              OPT: _____ - ACT
                            GENERAL INQUIRY                PAGE:    1 -    1

CASE NUMBER: 201459665__ POST JUDGMENT NUMBER> __ CURRENT COURT: 215 PUB? _
CASE TYPE: LIBEL_____________________ CASE STATUS: CASE ON APPEAL____________
STYLE: HOANG, ALOYSIUS (AKA AL HOANG AKA VS. THOI BAO MAGAZINE_______________
              SEQ ACT    PJN
     DATE     NUM CODE                 DESCRIPTION             PJN COURT INS>
_ 11/18/2014 2____ 11A__ _ DISMISSED ON DEFENDANT'S MOTION__ __ 215 1__
  IMAGE NUM: 63220552________ PGS: 1___ LCD: 11182014 CLERK: SPENCER, JEANETT
_ 11/18/2014 1____ PC___ _ PLAINTIFF COSTS _________________ __ 215 1__
                                        LCD: 11182014 CLERK: SPENCER, JEANETT




==> *** (2) RECORDS FOUND ***
1=NOTICE INQ 2=SETTING INQ 3=ACT ENTRY    4=PARTY INQ   5=MIN. INQ.
6=CASE. SUMM. 7=BACKWARD    8=FORWARD                   10=REFRESH    11=HELP




                                                                                324
325
326
327
328
CERTIFICATE
R




THE STATE OF TEXAS

COUNTY OF HARRIS

                 I, CHRIS DANIEL, Clerk of the District Court in and for Harris County, Texas, do hereby certify that the above and

foregoing are true and correct copies of all the proceedings directed by Counsel and/or Rule 34 to be included in the Original Clerks

Record in the Cause of



ALYOSIUS HOANG AKA HOANG DUY HUNG


                 VS.          NO. 2014-59665



THINH DAT NGUYEN INDIVIDUAL THOI BAO HOUSTON AND THOI BAO




as the same appear from the originals now on file of record in this office.

         GIVEN under my hand and seal of said Court at office in the City of Houston, on the 20TH day of JANUARY A.D., 2015




                                                                              CHRIS DANIEL,
                                                                              CLERK DISTRICT COURT,
                                                                              HARRIS COUNTY, TEXAS


                                                                              BY: /s/ PHYLLIS WASHINGTON
                                                                                       PHYLLIS WASHINGTON, DEPUTY




AP4 R04-30-92
                                                                                                                      329
                                                              BILL OF COSTS

                                               APPELLATE COURT NO. 14-14-00942-CV


THE STATE OF TEXAS
COUNTY OF HARRIS

ALYOSIUS HOANG AKA HOANG DUY HUNG
            APPELLANT(S)

VS.                                                                     TRIAL COURT CASE NO. 2014-59665


THINH DAT NGUYEN INDIVIDUAL THOI BAO HOUSTON AND THOI BAO
            APPELLEE(S)


TO OFFICERS OF COURT,


                                                             CLERK'S COSTS

ORIGINAL CLERKS RECORD                                                        $330.00

                                                            TOTAL $           $330.00




THE STATE OF TEXAS
COUNTY OF HARRIS

                   I, CHRIS DANIEL, Clerk of the District Court in and for Harris County, Texas, do hereby certify that the above is a

Correct Bill of all Costs incurred in preparation of the above numbered and entitled suit up to this date.

                   IN WITNESS WHEREOF, I, hereunto affix my hand and seal of the Court at office in Houston, Texas this 20TH day of

JANUARY A.D., 2015.


                                                                  CHRIS DANIEL,
                                                                  CLERK DISTRICT COURT,
                                                                  HARRIS COUNTY, TEXAS

                                                               BY:    /s/ PHYLLIS WASHINGTON
                                                                           PHYLLIS WASHINGTON, DEPUTY




Revised July 12, 2012



                                                                                                                      330
APPENDIX 2
                                                                     1



 1                          CAUSE NO. 2014-59665

 2
                                       )
 3    ALOYSIUS HOANG                   ) IN THE DISTRICT COURT
                                       )
 4                                     )
                       PLAINTIFFS,     )
 5                                     )
      VS.                              )
 6                                     ) HARRIS COUNTY, TEXAS
                                       )
 7    TOI BAG OF HOUSTON               )
                                       )
 8                                     )
                                       )
 9                     DEFENDANTS.     ) 215TH JUDICIAL DISTRICT

10

11

12

13

14

15                            MOTION TO DISMISS
                       TEXAS CITIZENS PARTICIPATION ACT
16

17

18

19

20                  On December 8, 2015, the following proceedings

21   came on to be heard in the above-entitled and numbered cause

22   before the Honorable, Elaine E. Palmer, Judge presiding, held

23   in Houston, Harris County, Texas.

24                  Proceedings reported by machine shorthand and

25   computer-aided transcription.



                           KAREN D. DESHETLER, CSR
                                 281-723-9090
                                                    2



 1                                APPEARANCES

 2   FOR THE PLAINTIFF:

 3   Mr. Aloysius Hoang
     Attorney at Law
 4   801 Congress St., Ste. 350
     Houston, Texas 77002
 5

 6   FOR THE DEFENDANT:

 7   Mr. Mark Bennett
     Bennett & Bennett
 8   735 Oxford Street
     Houston, Texas 77007
 9   713.224.1747

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25



                          KAREN D. DESHETLER, CSR
                                281-723-9090
                                                                      3



 1                                INDEX
                                                               PAGE
 2
     By the Court...........................................    4
 3
     By Mr. Bennett.........................................    4
 4
     By Mr. Hoang...........................................    7
 5
     By Mr. Bennett.........................................    10
 6
     By Mr. Hoang...........................................    11
 7
     By Mr. Bennett.........................................    12
 8
     By Mr. Hoang...........................................    13
 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25



                         KAREN D. DESHETLER, CSR
                               281-723-9090
                                                                           4



 1                  THE COURT:     Cause Number 2014-59665.     Aloysius

 2   Hoang versus Toi Bag Magazine.

 3                  MR. BENNETT:    Good morning.     I am Mark Bennett

 4   for Mr. Nguyen and Toi Bag of Houston, which is the magazine.

 5   We have a number of interested onlookers.      Would you rather we

 6   did it at the bench?

 7                  THE COURT:     Yes.

 8                  MR. BENNETT:    I also have a Vietnamese

 9   interpreter for Mr. Nguyen if she may approach with us and Mr.

10   Nguyen.

11                  THE COURT:     Okay.

12                  MS. LE:     Good morning.    I'm Thuy Le.   I

13   represent the Defendant.

14                  THE COURT:     How do you spell your first Thuy,

15   T-H-U-Y and L-E.

16                  MR. BENNETT:    Your Honor, what we have today is

17   a Motion Under the Texas Citizens Participation Act to Dismiss

18   the Case for Legal Fees and Other Relief.      We are having a

19   hearing rather than doing it by submission, because the statute

20   requires a hearing.    But the statute also requires that the

21   Court consider the pleadings and the affidavits.      So, it's not

22   a hearing to take evidence.    It's just a hearing to be the

23   hearing to close out the evidence and then the Court has 30

24   days in which to rule on the motion.       So, the Plaintiff has

25   filed some pleadings.    The Defendants have filed some pleadings



                            KAREN D. DESHETLER, CSR
                                  281-723-9090
                                                                          5



 1   and today filed two affidavits.     I don't know if those show up

 2   on your screen, yet.    But this morning after coming to court we

 3   filed my affidavit, which is on legal fees.      That's the

 4   affidavit of Mark Bennett.      And affidavit of Mr. Nguyen.

 5   That's affidavit of Thinh Dat Nguyen.     I can give the Court

 6   copies, if you please, but if you're not anticipating making a

 7   decision right now, which I don't think you have to, they'll be

 8   on the system.

 9                    THE COURT:   We are on the record.

10                    MR. BENNETT:    So, it's not a complex case, Your

11   Honor.   The Civil Practice and Remedies Code allows for a

12   Motion to Dismiss a case if the case is based on the exercise

13   of the right of free speech.     Here Mr. Hoang's lawsuit is based

14   on Mr. Nguyen's and the magazine's exercise of their right to

15   free speech.   That is criticizing Mr. Hoang who is a public

16   official and a public figure.     I don't think that he disputes

17   he is both a public official and public figure.       In order for

18   him to overcome the motion he has to make a prima facia showing

19   with clear and -- clear and specific evidence of each essential

20   element of his claim.    He has failed to do so and, so, end of

21   the day the Court's going to have to grant the Motion to

22   Dismiss.   The statute provides for mandatory attorney's fees.

23   I have filed an affidavit on my attorney's fees.      They are

24   reasonable given the circumstances.     And we're also asking for

25   sanctions.   My Amended Motion to Dismiss has various



                            KAREN D. DESHETLER, CSR
                                  281-723-9090
                                                                        6



 1   attachments in which -- they're public records in which Mr.

 2   Hoang has filed other lawsuits to try to stop people from

 3   exercising they're first amendment right.    The Texas Citizens

 4   Participation Act allows sanctions against a Plaintiff to

 5   discourage him from trying to shut down people's free speech by

 6   filing lawsuits.   It's appropriate in this case.   I don't know

 7   how much is appropriate.     Maybe a token amount would discourage

 8   Mr. Hoang from doing this in the future.     It might lead to be a

 9   very large amount.   He could probably answer that better than I

10   what it would take to stop him from filing lawsuits that

11   attempt to punish people for exercising their free speech

12   rights.

13                   And with that, since we're in a hearing I guess

14   we rest.   We've filed the evidence.    I want to make sure that

15   the evidence is closed out before we leave here today so that

16   we don't get into a situation where Mr. Hoang decides, oh, I

17   can file this affidavit, I can file that affidavit.    He is pro

18   se.   He is a licensed lawyer, but he as pro se and with all

19   respect to him I want to make sure that we're clear that this

20   is the evidence that we're going to be dealing with, so that if

21   I filed a brief he doesn't come back and say, oh, I'm going say

22   this is what.

23                   MR. HOANG:    Can I respond to his, Your Honor?

24                   THE COURT:    Yes.

25                   MR. HOANG:    First of all he says that I filed



                          KAREN D. DESHETLER, CSR
                                281-723-9090
                                                                             7



 1   all the lawsuits just to discourage other people.      Your Honor,

 2   those lawsuits, we went through mediations.      The Defendants

 3   wrote letter of apologies and in accordance to the mediation

 4   procedures once an apology like that and just to promote

 5   harmony I dismissed that.     It cannot be a base just for this

 6   lawsuit, Your Honor.     The second thing is, Your Honor, the anti

 7   -- statute, Chapter 27 of TCPR, Your Honor, doesn't allow the

 8   Defendant just to fabricate facts to liable somebody.     In this

 9   case, Your Honor, I have filed my motions and supplemental

10   answer.   Clearly, the Defendant fabricated fact.    Even today

11   before coming to Court he called and he said that I was sued

12   for calling a communist a communist.    So, he affirms that I'm a

13   communist.   In reality I've been fighting against the

14   communists over 30 years.     I was imprisoned by the Vietnamese

15   communist government in solitary confinement.

16                   MR. BENNETT:    I'm sorry, I have to object.      The

17   statute provides for evidence to be the pleadings and the

18   affidavit and not for live testimony on the issues.     Mr. Hoang

19   has said this in his pleadings that he was imprisoned for

20   fighting the communist.     I don't dispute that he has said that

21   and I know that he wants to make a persuasive case, but the

22   statute requires it to be done in writing.

23                   MR. HOANG:    Yes, Your Honor.   In my original

24   petition I have laid out the elements very clearly that he

25   called me a communist.    He affirms that I'm a spy, an insider



                            KAREN D. DESHETLER, CSR
                                  281-723-9090
                                                                         8



 1   of the communist regime working for the interests of the

 2   Vietnamese communist government.    Your Honor, that's liable.

 3   How could he identify me as an insider for the Vietnamese

 4   communist.    And in an anticommunist community like in Houston,

 5   Your Honor, that would be a threat to my life.    In reality,

 6   Your Honor, the second phrase, the second statement he made is

 7   this:   Mr. Hoang, this is what it is, in his article, article

 8   here, Your Honor, and I have the certified translation already.

 9   Hoang was planning to put a death threat bomb putting him and

10   his family members of his house and then call the police to

11   blame on the Vietnamese Nationalist Activist.     Afterward, he

12   took the pictures to take credit with the Vietnamese

13   communists.   Your Honor, this is not an opinion.   This is

14   statement of fact libeling me I was the victim of a death

15   threat bomb right in front of my house.   Now, he turn around

16   and said that I put it just to try to get the credits with the

17   communists.   And that on prima facia case is already there,

18   Your Honor.   And then the first statement it says my father

19   died because of an old accident.    An undocumented immigrant was

20   here.   She negligently passed a red light and hit my father who

21   then went to Ben Taub Hospital and he passed in Ben Taub

22   Hospital in the year 2007.   I, at that time, was not elected

23   the President of the Vietnamese community, yet.     But thousands

24   of people already knew the facts.    They went to the funeral.

25   Then after that I got elected as the President of the



                          KAREN D. DESHETLER, CSR
                                281-723-9090
                                                                           9



 1   Vietnamese community, Your Honor.

 2                     MR. BENNETT:    Again, Your Honor, for the record

 3   and I stopped talking, but I have to object that the evidence

 4   in this case is the pleadings and the affidavits.

 5                     MR. HOANG:    These are in the pleadings.    It's

 6   already in the pleadings.

 7                     MR. BENNETT:    Some of this is in the pleadings,

 8   but I'm saying he wants to put more into the record -- not

 9   really what the statute allows.

10                     MR. HOANG:    Mr. Mark Bennett, I let you have

11   your chance.   This is in the pleadings.      I just repeat the

12   pleadings that is there.       He then turn around and said my

13   father commit suicide, because my father found out I was

14   following the communists.       It's not true, Your Honor.    Those

15   are the facts that he made me affirm, Your Honor.       It's not

16   opinion.   It's not opinion, Your Honor.      Maybe this is opinion.

17   He has that right.    I understand that he has the First

18   Amendment right, but making up facts like that, Your Honor,

19   damage not only my reputation, but also putting my life and my

20   family members in jeopardy.

21                     And in reality he objected, but I have -- later

22   on I have proof that I have asked him numerous times please

23   have a debate, you know.       Because we have ways to fight against

24   the communists.    If you can show me a better way I will kneel

25   down and carry your shoes.       From that day on I will be your



                           KAREN D. DESHETLER, CSR
                                 281-723-9090
                                                                           10



 1   servant the rest of my life.     I don't want to pick on those

 2   people.   The statute here, Your Honor, you have to read the

 3   statute, the legislative intent is to protect the little ones.

 4   To protect those -- to protect those who write comments to the

 5   editor-in-chief.    But in this case, I don't know, he's the

 6   editor-in-chief.    Is he protected under statute?     That's the

 7   first question.

 8                     Now, if the statutes are going to be applied to

 9   him the second issue is, Your Honor, does the statute is going

10   to protect him from fabricating facts, Your Honor.        And I don't

11   think the statute does.    I have provided numerous cases from

12   Texas Supreme Court.    Defamation by itself, Your Honor, is the

13   fabrication of fact like that.        He's not going to be protected.

14                     MR. BENNETT:   You rest?

15                     MR. HOANG:   Yes.

16                     THE COURT:   Okay.

17                     MR. BENNETT:   I think the Defendant has rested.

18   I would like to respond to two things.        One is that Mr. Hoang

19   filed Phoungh Dingh Nguyen's affidavit, which purports to be a

20   translation of this article that he complains about from the

21   paper.    And I would note, I don't like the allegation that

22   somebody's father committed suicide because of what the son had

23   done.    If that were asserted as true I wouldn't like it.     I

24   don't think that that's very nice.       I would note, however, that

25   in the translation it said he succeeded to an extent that the



                            KAREN D. DESHETLER, CSR
                                  281-723-9090
                                                                           11



 1   Tong Nguyen on-line raised the question that his father was so

 2   shameful of the betrayal son, whereby he committed suicide.           To

 3   that extent it's reporting what some on-line source said.

 4                     What Mr. Hoang is missing here at the end of the

 5   day is malice, actual malice.      Actual malice means that Mr.

 6   Nguyen and the magazine knew that they were publishing falsity

 7   or were reckless about whether they were publishing falsity.

 8   And all of the evidence that he has raised, none of it makes

 9   the prima facia case there was actual malice.      I have briefed

10   it for you.     I can provide the brief.   I haven't filed it, yet.

11   I can give you a courtesy copy now.       I'll file it when I get

12   back to my office.    I'll give Mr. Hoang a copy and I have the

13   cases in support of it, as well, if otherwise we're done with

14   this hearing.

15                     MR. HOANG:    Your Honor, I will respond to that

16   actual malice.     He raised the first statement of fact that Mr.

17   Nguyen stated that posted on-line that my father committed

18   suicide.    They say that.     I object to it, Your Honor.   Now,

19   even if that is the case those are two of the statements, Your

20   Honor.    He called me an insider working for the communist

21   regime.    And, also, the second thing is he said that I planted

22   a bomb in front of my house.       Those, Your Honor, is not a

23   suspicion or is not an opinion.      It's a statement of fact.

24   Those facts, I have requested to have a debate with him.         But,

25   Your Honor, it's very clear that he didn't check it.         Actual



                            KAREN D. DESHETLER, CSR
                                  281-723-9090
                                                                          12



 1   malice is there, Your Honor.     Not one day.    He doesn't publish

 2   one magazine only.    He publishes it many issues.    Issue in and

 3   issue out.    So, that is something that is so constant, Your

 4   Honor.    And that's actual malice, Your Honor.     He can publish

 5   it.   I told him that.    He can contact me, call me, ask me.    I

 6   can give him answer.     I even provided him all the messages.       He

 7   didn't even care to bring it back.    He has his affidavit.     I

 8   have my own allegation.     But I provided him opportunity to

 9   contact me.    I have tons of witnesses on this.    I have provided

10   him chance to say, this is not right.    You can contact me.     I

11   will provide you my version.     Your Honor, for four years he has

12   only printed his version.     Not one from me.   And I have

13   objection to that many times.    Actual malice is already there.

14                    MR. BENNETT:   Since it's my motion I suppose I

15   can have the last word?

16                    THE COURT:   Sure.

17                    MR. BENNETT:   I think Mr. Hoang misunderstands

18   actual malice.    A failure to investigate is not actual malice.

19   He has to show that Mr. Nguyen actually knew it wasn't true or

20   acted in reckless disregard.     And he talks about opinion versus

21   fact.    The nature of actual malice law, first amendment law is

22   that a newspaper has the right to be wrong without being sued.

23   A newspaper can get the facts wrong without being liable for it

24   as long as the newspaper is not acting with this actual malice,

25   which is very high standard which, Mr. Hoang's evidence for



                            KAREN D. DESHETLER, CSR
                                  281-723-9090
                                                                             13



 1   purposes of this hearing does not meet.

 2                     And I thank you for your time, Your Honor.       If

 3   you would like a courtesy copy of my brief now I can give it to

 4   you or I will file it and you will have it electronically.         I

 5   also have copies of the cases.       I can provide those to you now

 6   or when I file the brief I can provide copies attached

 7   electronically.

 8                     THE COURT:    Just do it all electronically.

 9                     MR. HOANG:    May I respond to that?    To the

10   brief?   I haven't received his brief.

11                     THE COURT:    You have or have not?

12                     MR. HOANG:    I have not.

13                     MR. BENNETT:    He has now.

14                     MR. HOANG:    Okay.   Thank you.   First thing and

15   then the second thing is if the magazine makes a false

16   statement of fact or because of negligence they print it wrong

17   they have to apologize.    And this is the case, I put it in my

18   pleadings very clearly from the beginning we have dinner at his

19   house.   And I said, "They are inviting me to go to Vietnam with

20   them."   He said immediately, "If you go to Vietnam I'm going to

21   pull you down.    I'm going to meet you and pull you down."

22   Actual malice is there, Your Honor.

23                     MR. BENNETT:    My plan to get the last word

24   didn't work, Your Honor.       I thank you for your time and I'll

25   provide you with the brief.       I think you will be able to decide



                           KAREN D. DESHETLER, CSR
                                 281-723-9090
                                                           14



 1   based on the papers.

 2                  THE COURT:    All right.

 3                  MR. BENNETT:    Thank you very much.

 4

 5

 6                           (Hearing concluded.)

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25



                            KAREN D. DESHETLER, CSR
                                  281-723-9090
                                                                     15



 1   STATE OF TEXAS

 2   COUNTY OF HARRIS

 3             I, Karen D. deShetler, Deputy Court Reporter, in and

 4   for the 215th District Court of Harris County, State of Texas,

 5   do hereby certify that the above and foregoing contains a true

 6   and correct transcription of all portions of evidence and other

 7   proceedings requested in writing by counsel for the parties to

 8   be included in this volume of the Reporter's Record, in the

 9   above-styled and numbered cause, all of which occurred in open

10   court or in chambers and were reported by me.

11             I further certify that this Reporter's Record of the

12   proceedings truly and correctly reflects the exhibits, if any,

13   admitted by the respective parties.

14             I further certify that the total cost for the

15   preparation of the Reporter's Record is $100 and will be paid

16   by the Plaintiff.

17             WITNESS MY OFFICIAL HAND this the 25th day of

18   August, 2015.

19

20                       //Karen D. deShetler//
                         __________________________________________
21
                         Karen D. deShetler, CSR 1688
22                       Expiration Date: 12/31/2016
                         Certified Court Reporter
23                       74 Lyric Arbor Circle
                         The Woodlands, Texas 77381
24                       Telephone: 281-723-9090

25



                         KAREN D. DESHETLER, CSR
                               281-723-9090
