COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-13-00191-CR
TUAN NGUYEN APPELLANT
V.
THE STATE OF TEXAS STATE
----------
FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 1318975R
----------
MEMORANDUM OPINION1
----------
I. Introduction
A jury convicted Appellant, Tuan Nguyen (Tuan), in the shooting deaths of
Binh Quoc Lam (Lam) and Nhan Tran (Tran) and sentenced him to life in prison.
In three issues Tuan appeals his conviction. We affirm.
1
See Tex. R. App. P. 47.4.
II. Statement of Facts
The night of October 13, 2010, Tran’s uncle, Thien Nguyen (Uncle
Nguyen) picked up Tran, and they headed to Saigon Nights nightclub in Arlington
where they met up with Lam and some other acquaintances. While at the
nightclub, Hai Van Phan (Phan) arrived to talk to Lam about Tuan disrespecting
Phan. Lam then called Tuan, who was at a gambling house in Haltom City. Lam
accused Tuan of disrespecting Phan; he told Tuan not to leave the gambling
house before he arrived, and if he did, Lam had better not catch Tuan in Haltom
City again.
A short time later, Uncle Nguyen, Phan, Lam, and Tran arrived at the
gambling house where they met Tuan outside; an altercation broke out between
Lam and Tuan. Lam hit Tuan and pointed a gun at Tuan’s head; an intoxicated
Lam2 then told Tuan he was going to shoot him.3 Uncle Nguyen intervened to
break up the fight and got the gun from Lam. Lam and Tuan continued to fight,
and Lam was knocked to the ground. Uncle Nguyen testified that he saw a friend
of Tuan’s come around a corner and start shooting in the direction of Lam, so
Uncle Nguyen ran to hide in some bushes. Both Uncle Nguyen and another
2
A witness testified during trial that Lam was so intoxicated he was barely
able to stand upright.
3
Uncle Nguyen witnessed the entire altercation and testified as such during
the trial.
2
witness testified that while Lam was lying on the ground, Tuan drew his gun from
behind his back and shot Lam in the back of the head.4
During the fight, Phan ran and got into the passenger seat of a nearby
white Lexus. After shooting Lam, Tuan walked over to the Lexus. According to
Tuan, when he approached the Lexus, Phan was looking for what Tuan believed
was a gun, so he shot him five times. While Tuan was shooting Phan,5 someone
was shooting at Tuan from the area where Tran’s body was later found, and
Tuan returned fire to that area.6 According to Tuan, after returning fire, he ran
out of bullets, returned to the area of the Lexus, reloaded, and returned fire when
someone shot at him again.
Tuan then ran toward Tran and Uncle Nguyen and shot Tran. 7 Uncle
Nguyen began shooting at Tuan, hitting him in the stomach, and then drove away
4
According to the deputy medical examiner, an examination of Lam’s back-
of-the-head entry wound showed that when Tuan fired the shot, the barrel of the
weapon was about half an inch or so away from the skin, resulting in a loose-
contact or near-contact wound.
5
Phan died from his injuries.
6
During Tuan’s testimony he stated that once he shot Phan someone
started shooting at him from behind so he had “to continue [his] action until [he
wasn’t] mad and angry anymore.”
7
Tuan’s testimony differs from Uncle Nguyen’s in that according to Tuan he
shot randomly in their direction because someone was shooting at him, and he
did not walk directly toward them. Tuan said it may have been Uncle Nguyen
shooting from the location where Tran’s body was later located.
3
when his pistol was empty.8 A witness testified that he heard Tran calling for
Uncle Nguyen after he was shot but that Uncle Nguyen had run away. The
witness also heard Tuan go back and shoot Tran again after Tran begged for his
life; Tuan told Tran that he had no business being there that night. Tuan
admitted causing the deaths of Lam and Tran.9
In this case, the indictment’s first count alleged that Tuan, on or about
October 13, 2010, did “then and there intentionally cause the death of an
individual, . . . Lam, by shooting him with a firearm and did then and there
intentionally cause the death of an individual, . . . Phan, by shooting him with a
firearm and both murders were committed during the same criminal transaction.”
See Tex. Penal Code Ann. § 19.03(a)(7) (West 2011 & Supp. 2014). The trial
court submitted lesser-included offense instructions regarding just the murders of
Lam and Phan individually. See id. § 19.02 (West 2011); Moore v. State, 969
S.W.2d 4, 11–12 (Tex. Crim. App. 1998) (holding that when evidence might
support finding defendant killed one victim in self-defense, yet murdered second
victim without justification, lesser-included offense instruction regarding murder of
just second victim is appropriate).
8
According to Tuan’s version of the events, Uncle Nguyen shot him in the
stomach during his altercation with Lam, not after he had shot Tran the first time.
9
Tuan admitted that after he shot Lam he shot Phan, stating “either I die or
they die.”
4
The indictment’s second count charged Tuan with intentionally or
knowingly causing Tran’s death “by shooting him with a firearm.” The
indictment’s second paragraph charged that Tuan “intentionally, with intent to
cause serious bodily injury to. . . Tran, commit[ted] an act clearly dangerous to
human life, namely, shooting him with a firearm, which caused the death
of. . . Tran.” See Tex. Penal Code Ann. §19.02(b)(2) (defining alternative method
of committing murder as when the actor “intends to cause serious bodily injury
and commits an act clearly dangerous to human life that causes the death of an
individual”).
The jury found Tuan not guilty of capital murder as charged in the
indictment’s first count and not guilty of the murder of Phan, but returned a guilty
verdict with respect to the lesser-included offense of the murder of Lam. The jury
also found Tuan guilty of murdering Tran as alleged in the indictment’s second
paragraph.
III. Sufficiency of the Evidence
In his first issue, Tuan asserts that the evidence presented by the State at
trial was insufficient to convict him of the murder of Lam because the evidence
demonstrated he was acting in self-defense.
A. Standard of Review
In our due-process review of the sufficiency of the evidence to support a
conviction, we view all of the evidence in the light most favorable to the verdict to
determine whether any rational trier of fact could have found the essential
5
elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.
307, 319, 99 S. Ct. 2781, 2789 (1979); Winfrey v. State, 393 S.W.3d 763, 768
(Tex. Crim. App. 2013).
The defendant has the burden of producing some evidence to support a
claim of self-defense. Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App.
2003). After the defendant produces some evidence to support a claim of self-
defense, the State bears the burden of persuading the finder of fact that the
defendant did not act in self-defense. Id. ; Saxton v. State, 804 S.W.2d 910,
913–14 (Tex. Crim. App. 1991); Dotson v. State, 146 S.W.3d 285, 291 (Tex.
App.—Fort Worth 2005, pet. ref’d).
To determine sufficiency of the evidence to disprove a nonaffirmative
defense, the appellate court asks
whether after viewing all the evidence in the light most favorable to
the prosecution, any rational trier of fact would have found the
essential elements of [the offense] beyond a reasonable doubt and
also would have found against appellant on the [defensive] issue
beyond a reasonable doubt.
See Saxton, 804 S.W.2d at 914 ; see also Smith v. State, 355 S.W.3d 138, 144–
47 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d) (applying Saxton and Zuliani
to the jury’s rejection of the defendant’s self-defense and defense-of-third-person
theories). “[A] judge must give a requested instruction on every defensive issue
raised by the evidence without regard to its source or strength, even if the
evidence is contradicted or is not credible.” Krajcovic v. State, 393 S.W.3d 282,
286 (Tex. Crim. App. 2013).
6
B. Self-Defense
According to the Texas Penal Code, “a person is justified in using force
against another when and to the degree the actor reasonably believes the force
is immediately necessary to protect the actor against the other’s use or
attempted use of unlawful force.” Tex. Penal Code Ann. § 9.31 (West 2011).
As to deadly force used,
(a) A person is justified in using deadly force against another:
....
(2) when and to the degree the actor reasonably believes the
deadly force is immediately necessary:
(A) to protect the actor against the other’s use or
attempted use of unlawful deadly force; or
(B) to prevent the other’s imminent commission of
aggravated kidnapping, murder, sexual assault,
aggravated sexual assault, robbery, or aggravated
robbery.
Id. § 9.32(a)(2)(A)(B).
As was recounted, the evidence shows that Tuan walked over to the
weaponless Lam, who was lying face down on the ground, and shot Lam in the
back of his head with the pistol touching or nearly touching the skull. A person
who shoots his weaponless victim in the back of the head when the victim is in a
prone position is not a person who acts in self-defense. See Else v. State, 666
S.W.2d 251, 252 (Tex. App.—Dallas 1984, pet. ref’d) (holding that evidence of a
victim that was shot from behind supports a jury’s rejection of a self-defense
7
claim); see also Gutierrez v. State, No. 03-01-00703-CR, 2002 WL 1987959, at
*2–3 (Tex. App.—Austin 2002 no pet.) (mem. op., not designated for publication)
(same); Munlin v. State, No. 05-97-01553-CR, 1999 WL 732730, at *4 (Tex.
App.—Dallas 1999, no pet.) (not designated for publication) (holding that
evidence showing a victim shot in the back of the head at close range supported
rejection of self-defense claim). A rational trier of fact could have found against
Tran on his claim of self-defense for this reason. See Saxton, 804 S.W.2d at
914. Viewing the evidence in the light most favorable to the jury’s verdict, legally
sufficient evidence supports Tuan’s self-defense claim. Tuan’s first issue is
overruled.
IV. Self-defense Instruction
In his second and third issues Tuan asserts that the trial court erred by
denying Tuan’s request to include a self-defense instruction in the charge
regarding the murder of Tran.
We are required to apply a two-step process in analyzing alleged charge
error. Abdnor v. State, 871 S.W.2d 726, 731 (Tex. Crim. App. 1994). We first
determine whether error occurred; if error did not occur, our analysis ends.
Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012).
A defendant is entitled to an instruction on every defensive issue raised by
the evidence regardless of the strength of the evidence. Brown v. State, 955
S.W.2d 276, 279 (Tex. Crim. App. 1997). Defensive issues may be raised by the
testimony of the accused or any other witness, including those called by the
8
State. See Jackson v. State, 110 S.W.3d 626, 631 (Tex. App.—Houston [14th
Dist.] 2003, pet. ref’d). Moreover,
[a] defendant is entitled to an instruction on the law of self-defense if
there is some evidence that he intended to use force against another
and he did use force, but he did so only because he reasonably
believed it was necessary to prevent the other’s use of unlawful
force.
Ex Parte Nailor, 149 S.W.3d 125, 132 (Tex. Crim. App. 2004).
There is no evidence that Tran was ever armed on the occasion in
question, and logically likewise no evidence that he was responsible for firing any
shots at Tuan or anyone else. Further, the evidence showed that (1) Tran
begged for his life when Tuan approached him the second time, (2) Tuan told
Tran he should not have come, he had no business there, and (3) Tuan then shot
Tran again, killing him. In short, all of the evidence shows that Tran was a
nonparticipating, unarmed bystander. It is axiomatic that the second time Tuan
shot Tran, he could not have been defending himself against this wounded,
unarmed bystander who was begging for his life. The trial court did not err in
rejecting the self-defense instruction request, and Tuan’s second and third issues
are overruled.
9
V. Conclusion
Having overruled Tuan’s three issues, we affirm the judgment of the trial
court.
PER CURIAM
PANEL: MCCOY, MEIER, and GABRIEL, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: October 23, 2014
10