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Pham v. State

Court of Appeals of Texas, Fourteenth District

October 31, 2019


          On Appeal from the 184th District Court Harris County, Texas, Trial Court Cause No. 1096930

          Panel consists of Chief Justice Frost and Justices Bourliot and Poissant.


          Margaret "Meg" Poissant Justice.

         A jury found appellant Happy Tran Pham guilty of murder and assessed his punishment at confinement for life. From that conviction, appellant brings this appeal complaining of jury-charge error and ineffective assistance of counsel. We affirm.

         I. Factual and Procedural Background

         On December 13, 2006, appellant entered the Cajun Kitchen restaurant in Harris County, Texas, and shot and killed Pierre Mai, the complainant. Appellant fled the restaurant and was not located until February 2016, ten years after the incident, when he was arrested. Appellant was tried and convicted, as noted above. Appellant filed a motion for new trial, which was denied. This appeal timely followed.[1]

         A. Events Before the Shooting

         The trial evidence showed that before the shooting, appellant had dated Thuy Le. Before she began seeing appellant, Thuy Le dated the complainant. After Thuy Le's relationship with appellant ended, she resumed dating the complainant. Both the complainant and appellant were known to carry firearms.

         Appellant testified that while he and Thuy Le were dating, he believed the complainant was stalking them. According to appellant, the complainant tried to assault him at the Window Café about four to six months before the shooting. The complainant approached the area where appellant and his friends were sitting and after making eye contact with appellant, the complainant tried to hit him. The police "broke it up." The next night, at a club, a friend of the complainant's approached appellant and asked about the situation from the night before. Appellant agreed not to escalate the situation any further.

         On Halloween night of 2006, appellant went to Magic Island with Casey Mast. While going up the stairs, one of the complainant's friends bumped into appellant. Huy Thai also was there. A fight started, and appellant recalled ending up on the floor with "at least 10 or 15 people surrounding [him.]" Promoters of the event and security broke up the fight, but appellant testified he was hit in the face. Casey testified that someone threw a bottle and hit appellant in the face, causing appellant to start "bleeding real bad." Appellant received 15 stitches in his forehead. Appellant owned a Heckler & Koch USP .40 gun and after that night he began carrying it more often.

         Huy Thai's version of events differed. He testified that appellant bumped into a friend of his and "a little scuffle" began. To his knowledge, no one injured appellant by throwing a beer bottle at his head.

         According to appellant, in the fall of 2006, prior to the incident at Cajun Kitchen, appellant changed his mind about the level of potential violence of complainant and Huy Thai, based on his belief that they were involved in a drive-by shooting, his observation of a vehicle riddled with bullet holes that appellant believed was involved in the drive-by shooting, and Huy Thai's association with a gang known as NCP, which stands for "Northside Chink Posse." Appellant recognized some of the people at Magic Island on Halloween night as also being involved with NCP. Huy Thai denied that he or the complainant were affiliated with NCP. Huy Thai denied that he and the complainant were involved in a drive-by shooting in November 2006. Detective Bart Nabors testified that he searched but did not find any evidence that Huy Thai and the complainant were involved in a drive-by shooting.

         B. The Restaurant Shooting

         About 1:00 p.m. on the day of the restaurant shooting, appellant's cousin, Michael Tran, and his fiancée, Mai Pham, invited appellant to dinner at the Cajun Kitchen. Appellant called his brother, Long Pham, at 5:15 p.m. and asked Long to go with him, but Long could not. At 5:25 p.m., appellant called Devon Le, who could not go either. Appellant then planned to stay home, but Billy Yang went to appellant's house, at which time appellant informed Billy Yang of his cousin's invitation, and they decided to go to the Cajun Kitchen. According to appellant, at that time he did not know the complainant would be there.

         Michael Tran is appellant's cousin. Michael testified he arrived at the restaurant after 7:00 p.m. with Mai and their baby. Michael knew that after he invited appellant to the restaurant, appellant was informed the complainant and Thuy Le, a woman that appellant had previously dated, might be at the Cajun Kitchen. Michael denied he sent the communication-he believed it was Mai who had contacted appellant-or that it was for the purpose of enticing appellant to come to the restaurant.

         Michael saw appellant when appellant entered, and they nodded at each other. Michael testified that to his right he saw the complainant, who "kind of stood up, kind of reached for his waist. Blink of an eye, heard gunshots; and Happy [appellant] was running out." Michael never saw a gun and did not witness appellant do anything to provoke the complainant. Michael testified appellant "was just walking in." Michael said appellant was coming to him first, but then something got appellant's attention and appellant went in the other direction. Michael did not hear appellant curse or say anything."

         Michael acknowledged that the video showed that at the time appellant was giving him a head nod, appellant already was reaching for his waistband and was not even looking at the complainant, but at Michael. Michael also agreed that appellant pulled out his gun and continued to walk, several steps, with the gun at his side while Michael was looking right at him. Michael admitted a lot of people were trying to get out of the way, but that he just continued "to look right in that direction."

         Thuy Le was sitting at a table across from the complainant. She had her back to the door when appellant entered the restaurant. Thuy Le did not see him until he walked up to the table. Thuy Le testified that appellant was saying something like, "Motherf***er, you in my hood" and "then he started shooting right away." Thuy Le saw appellant point the gun at the complainant, who was sitting down and eating, not trying to get up from the table. Thuy Le did not ever see the complainant pull a gun and point it at appellant; she stated the complainant was eating. Thuy Le testified the complainant was shot twice, and that after the shooting she saw a gun on the floor next to the complainant. Thuy Le described appellant as mad or angry but the complainant as calm.

         Huy Le testified appellant walked in, "probably like one or two steps" and said, "What the f*** you doing in my mother***ing hood?" Huy Thai saw appellant take the gun out of his waistband as he was speaking, and ran to get a gun kept under the restaurant register. Huy Thai gave the complainant a tap to the knee when he saw appellant walk in; the complainant was still sitting and Huy Thai did not see him get up from the table or reach for or pull a gun from anywhere. Huy Thai did not know the complainant was carrying a gun that night. After the shooting, Huy Thai went to the complainant and he saw a gun on the ground right next to the complainant, similar to the black gun he knew the complainant owned. Huy Thai did not know how the gun got on the ground; he did not see the gun fall or hear it hit the ground.

         Thomas Tran was working as a cashier that night. Thomas saw appellant enter. When appellant was a few steps inside, Thomas saw him pull out a gun. Appellant did not speak with anyone else in the restaurant and appeared to be headed "in one direction." Appellant walked directly to the complainant's table and said, "Bitch, you're in my hood." The next thing Thomas heard was "gunshot." Thomas ran to get his gun. Appellant was walking toward the door but began running when he grabbed the door handle. Thomas retrieved his gun and followed appellant outside. Appellant turned around and Thomas saw something black. Thomas began shooting at appellant, who did not return fire. Appellant had someone with him and was running towards a car. The car was backed in but not running and the lights were off. To the left of where appellant parked his car, there was an exit onto the street. Appellant got away on foot. After Thomas returned to the restaurant, he saw a gun near the complainant. Thomas picked up the gun and turned it over to police when they arrived.

         Appellant admitted that he first learned the complainant would be at the restaurant as appellant was leaving his house. Appellant also said he was probably in the house and "still getting ready" when he received the text from Mai.

         A text message was admitted into evidence from Mai to appellant informing him the complainant was at the restaurant. It states, "Hey happy just wanted to let you know your ex is here with her ex bf." Appellant knew "here" was the Cajun Kitchen. He did not change his mind about going there after receiving the text. When asked if he had a concern "that something might erupt" given events between him and the complainant in the past, appellant said, "Definitely." Appellant also testified he was "[o]n guard." Appellant denied that he went to the restaurant expecting "to get into a gunfight" and said that was not his desire. According to appellant, he thought the problem was over because Thuy Le had gone back to the complainant.

         Appellant admitted to carrying a firearm when he walked into the restaurant and said he "was just on guard because, you know, [the complainant] was there." Appellant then denied expecting to have to use his gun that night. When asked again why he brought the gun, appellant replied, "All the drama that occurred prior to it, and, you know, his - he is just a volatile type of person. I didn't know what to expect from him sometimes." Appellant denied attempting to provoke violence.

         Appellant testified that when he walked into the restaurant, one of his hands was in his pocket out of habit. According to appellant, he saw Huy Thai and the complainant, and the complainant had his hand "down"-appellant indicated where. Appellant said he avoided eye contact with that side of the room but heard a commotion, like a chair on tile, coming from that area. Out of the corner of his eye, appellant saw Huy Thai jumping up, and that is when appellant drew his weapon. Appellant then said that he did not draw just because of Huy Thai, but also because appellant had seen the complainant reach down when appellant walked in the door. Appellant claimed he did not draw his weapon to shoot, but to discourage a conflict. Appellant continued walking toward the complainant who "was kind of struggling with his gun." Appellant did not turn around and run because "[e]verything happened too quick." Appellant testified that he was trying to discourage the complainant's actions. He did not remember exactly what he said but recalled saying, "What the F are you doing?" According to appellant, he cursed at the complainant as a verbal warning and to deescalate the situation. Appellant testified that "at the end of [his] verbal warning," the complainant was "in the motion of pointing his gun at me." Appellant said he was holding his weapon down and had no intention of using it; he had not decided to use deadly force at that time. Appellant claimed he still was hoping to deescalate the situation. When asked, "if you're going to deescalate, why would you walk towards someone with a gun?" Appellant answered, "I didn't think he was going to point his gun at me." Appellant claimed he thought his actions would cause the complainant to stop.

         Appellant said when he first saw the complainant's gun, the complainant was trying to draw it out of his waistband. The complainant did not immediately point his gun at appellant because he "staggered." Appellant decided to use deadly force when the complainant pointed his gun at appellant. Appellant did not feel he could retreat at that point. Appellant said his first shot was very low. As the complainant was falling back, the complainant's gun came up again. Appellant said he "was staring down his barrel when I had to fire my second shot." Appellant recognized the complainant's gun as a black Glock.

         Appellant testified that he ran outside and heard six or seven gunshots behind him. Appellant had parked his car in the first available spot. Appellant said there was not a strategic reason to park there and claimed that spot was actually a disadvantage because it was too close to the exit and if he left too fast, he would rip off his bumper. Billy Yang had the key because he was finishing a cigarette and was going to lock the car. Appellant heard hissing sounds from the engine and saw bullet holes in the hood. He ran to his cousin Michael's house.

         Michael said he "cussed [appellant] out." He said appellant claimed he just reacted when the complainant pulled a gun on him. Appellant told Michael that he had disassembled the gun and thrown it in the gutter. Michael stated that he had no knowledge of appellant's whereabouts in the following years and did nothing to help him hide, and never attempted to give the police the account he gave in court.

         At the restaurant, Sergeant Cruser recovered fired cartridge casings and two pistols. There were six .45 caliber casings and two .40 caliber casings. A 9-mm Glock 17 model semi-automatic pistol loaded with 9-mm rounds was recovered. No 9-mm cartridge casings were recovered. A Springfield Armory .45 caliber pistol was found. Kasi Kirksey, a firearms examiner for the Houston Forensic Science Center, testified the six .45 casings found at the restaurant were fired from the Springfield Armory .45 pistol. The two .40 casings were not fired from that gun but both .40 casings had been fired from the same weapon. No .40 caliber firearm was recovered. A cell phone was recovered from appellant's car that showed calls and text messages were made and received during the time period surrounding the shooting.

         Sergeant J.T. Wyers retrieved the restaurant surveillance video from the night of the shooting. Two videos were admitted into evidence and published to the jury. The video with the earlier time stamp of 8:18 p.m., State's Exhibit 42, shows a woman exiting the restaurant on her phone and returning shortly thereafter. The other video, State's Exhibit 41, has a time stamp of 8:51 p.m. Wyers identified the person on the video that walked into the restaurant as appellant and identified appellant in court. Wyers testified the video shows appellant reaching for a weapon in his waistband. The complainant's table is off screen and he cannot be seen on the video. Appellant continues to walk towards the complainant's table. At a nearby table is appellant's cousin, Michael Tran. Tran and his family did not stay at the scene but left the restaurant after the shooting. No family or witnesses ever came forward on appellant's behalf.

         An arrest warrant for appellant issued, and charges were filed. Appellant was not found at his residence, which was his parents' home. Appellant's parents and sister did not cooperate with Sergeant Wyers in his search for appellant.

         Dr. Sarah Doyle, an assistant medical examiner at the Harris County Institute of Forensic Sciences, testified the complainant had a fatal gunshot wound that entered on the left side of his chest. His spine was perforated, which would have rendered the complainant immediately paralyzed from the waist down, preventing him from standing or moving his legs. The complainant also had gunshot wounds on both thighs. Doyle could not say with complete certainty that the same bullet went through both legs, but it was possible. Doyle could not determine which bullet struck the complainant first.

         Detective Bart Nabors of the Houston Police Department, homicide division, interviewed appellant in February 2016. A video of that interview was admitted into evidence and published to the jury.

         Nabors testified appellant told him that appellant walked into the restaurant alone and Billy Yang stayed outside. However, the restaurant surveillance video showed Billy Yang walked into the restaurant right behind appellant. Appellant said he did not turn himself in because he was waiting for a video to surface that showed the complainant pulled a gun on appellant. Nabors testified that there was no footage that would have shown the complainant's table; according to his investigation, there was not a camera in the restaurant that would have shown that angle. Appellant also told Nabors that he had seen the video of the shooting that was shown on "America's Most Wanted."

         II. Denial of Motion for New Trial

         In his first issue appellant claims the trial court abused its discretion by denying his motion for new trial. Appellant argues he was entitled to a new trial and punishment hearing based upon (1) jury charge error in the guilt/innocence phase; (2) ineffective assistance of counsel in the punishment phase; and (3) the trial court's informing the jury about parole law during the punishment phase.

         A. Charge-Error Argument

         Appellant contends the trial court erred in charging the jury during the guilt/innocence phase in two regards:

• He was entitled to a threat-of-force instruction in the jury charge pursuant to Texas Penal Code section 9.04; and
• The trial court erred in submitting a jury charge on "provoking the difficulty." See Williams v. State, 25 S.W. 788 (Tex. Crim. App. 1894).

         Appellant then argues that cumulative error in the charge denied appellant his rights to due process and a fair trial.

         1. Threat-of-Force Instruction

         The record reflects that during the charge conference appellant requested an instruction in accordance with Texas Penal Code section 9.04, which provides:

The threat of force is justified when the use of force is justified by this chapter. For purposes of this section, a threat to cause death or serious bodily injury by the production of a weapon or otherwise, as long as the actor's purpose is limited to creating an apprehension that he will use deadly force if necessary, does not constitute the use of deadly force.

Tex. Pen. Code § 9.04. The trial court denied the request. Appellant relies upon Gamino v. State, 537 S.W.3d 507, 508 (Tex. Crim. App. 2017), in support of his argument that he was entitled to the instruction. Because the facts of Gamino are not analogous to this case, appellant was not entitled to a threat-of-force instruction.

         Gamino was arrested for aggravated assault with a deadly weapon after he pulled a gun out of his truck and pointed it at three men, allegedly saying "I got something for you." Gamino, 537 S.W.3d at 509. Gamino disputed that evidence and testified that he drew his gun in self-defense after the men threatened him and his girlfriend. Id. At trial, Gamino requested a self-defense instruction, which was denied. The Court of Criminal Appeals concluded that Gamino was entitled to an instruction pursuant to section 9.04. Id. at 510; Tex. Penal Code § 9.04.

         The high court explained that section 9.04 is part of the law of self-defense and not a "third variety" of self-defense. Gamino, 537 S.W.3d at 510 n.12. Because Gamino was charged with using a deadly weapon, he was entitled to an instruction on non-deadly force self-defense under Penal Code section 9.31 if the evidence triggered application of Penal Code section 9.04. Gamino, 537 S.W.3d at 510. But section 9.04 only applies when "deadly force" was not used and section 9.32, deadly force self-defense, is inapplicable. Gamino, 537 S.W.3d at 511. Gamino did not specify whether section 9.31 or section 9.32 applied and did not specifically ask for a section 9.04 instruction. Id. However, because the evidence triggered application of section 9.04, which "is not a separate statutory defense, but is encompassed within Section 9.31," the Court of Criminal Appeals held the trial court should have considered section 9.04 when considering Gamino's request for an instruction on self-defense. Id. . at 511.

         In the case at bar, the question for the jury was not, as in Gamino, whether the defendant's account of what happened supported a reasonable belief that his use of non-deadly force was justified. See id. at 512-13. Appellant received a self-defense instruction. Because he did use deadly force, rather than the threat of deadly force, he was not entitled to an instruction pursuant to section 9.04, in addition to the instruction on self-defense. See Gamino, 537 S.W.3d at 511-12.

         Accordingly, we conclude the trial court did not err in denying the ...

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