Nam Bryan Tran v. State

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana

No. 06-13-00087-CR

NAM BRYAN TRAN, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 371st District Court
Tarrant County, Texas
Trial Court No. 1277354D

Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Justice Carter
 MEMORANDUM OPINION
Nam Bryan Tran appeals his conviction by a jury for the murder of Austin Nguyen. Tran

admitted shooting Nguyen, but claimed he acted in self-defense. The jury rejected Tran’s claim

of self-defense and assessed punishment at ninety-nine years’ imprisonment. 1 Because (1) the

jury’s rejection of Tran’s claim of self-defense is supported by legally sufficient evidence,

(2) error in the application paragraph of the court’s charge was harmless, (3) the evidence

supports the inclusion of a provocation instruction in the jury charge, (4) the admission of

evidence regarding Tran’s knowledge of gun laws was not an abuse of discretion, and (5) the

trial court did not abuse its discretion in limiting Loc Tran’s testimony, we affirm the judgment

of the trial court. 2

I. The Evidence Is Legally Sufficient to Support Rejection of Self-Defense

A. Applicable Law and Standard of Review

Because Tran claimed self-defense, he had the burden of producing some evidence to

support this defense. See Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003). Once

Tran raised the defense, the State had the burden of persuasion to disprove the defense. Id. The

burden of persuasion does not require the production of evidence, but it does require that the

State persuade the jury beyond a reasonable doubt that the defendant did not act in self-defense.

Allen v. State, 253 S.W.3d 260, 267 (Tex. Crim. App. 2008); Zuliani, 97 S.W.3d at 594. Self-
1
TEX. PENAL CODE ANN. § 19.02(b) (West 2011).
2
Originally appealed to the Second Court of Appeals, this case was transferred to this Court by the Texas Supreme
Court pursuant to Section 73.001 of the Texas Government Code. See TEX. GOV’T CODE ANN. § 73.001 (West
2013). We are unaware of any conflict between precedent of the Second Court of Appeals and that of this Court on
any relevant issue. See TEX. R. APP. P. 41.3.

2
defense is a fact issue to be determined by the jury, which is free to accept or reject any

defensive evidence on this issue. Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991).

A jury’s verdict of guilty is an implicit finding rejecting a theory of self-defense. Zuliani, 97

S.W.3d at 594; Saxton, 804 S.W.2d at 914.

Because the State carries the burden of persuasion to disprove self-defense beyond a

reasonable doubt, we review sufficiency of the evidence under the standard articulated in

Jackson v. Virginia, 443 U.S. 307, 319 (1979). Smith v. State, 355 S.W.3d 138, 144–45 (Tex.

App.—Houston [1st Dist.] 2011, pet. ref’d) (applying Jackson standard to jury’s rejection of

self-defense claim).

In resolving the sufficiency of the evidence issue under the Jackson standard, we must

determine whether, after viewing all evidence in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements of murder beyond a reasonable

doubt. Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010) (citing Jackson, 443 U.S.

at 319); Hartsfield v. State, 305 S.W.3d 859, 863 (Tex. App.—Texarkana 2010, pet. ref’d). We

examine legal sufficiency under the direction of the Brooks opinion, while giving deference to

the responsibility of the jury “to fairly resolve conflicts in testimony, to weigh the evidence, and

to draw reasonable inferences from basic facts to ultimate facts.” Hooper v. State, 214 S.W.3d 9,

13 (Tex. Crim. App. 2007) (citing Jackson, 443 U.S. at 318–19); Clayton v. State, 235 S.W.3d

772, 778 (Tex. Crim. App. 2007). Sufficiency of the evidence is measured by the elements of

the offense as defined by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234,

240 (Tex. Crim. App. 1997). The hypothetically correct jury charge “sets out the law, is

3
authorized by the indictment, does not unnecessarily increase the State’s burden of proof or

unnecessarily restrict the State’s theories of liability, and adequately describes the particular

offense for which the defendant was tried.” Id.

Texas law provides that self-defense justifies the use of deadly force if certain

circumstances are met. Morales v. State, 357 S.W.3d 1, 7 (Tex. Crim. App. 2011). The use of

deadly force is justified if “(1) the actor would be justified in using force against the other under

Section 9.31; and (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 . . . .” TEX. PENAL CODE ANN. § 9.32(a)(2)(A) (West 2011). Section 9.31

justifies the use of force “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(a) (West 2011).

B. The Evidence at Trial

The mood was festive as celebrants left a July 21, 2011, wedding reception to continue

the festivities at Saigon Nites, an Asian nightclub in Arlington. Nguyen, who had flown home

from New Jersey the previous day to attend the wedding of his friend, was among the celebrants.

The nightclub had placed several tables together when it was alerted that a group from the

wedding was expected so that the wedding guests could sit together and socialize.

Tran, who was not among the wedding celebrants, visited Saigon Nites that same evening

with friends. After arriving at the nightclub, Tran walked around, visited, and spoke with his

friend Tinh Pham. Tran then sat down at the end of a group of tables occupied by the wedding

4
celebrants. Although he was seated next to Nguyen, Tran did not know him. Tran remembers

Nguyen asking him if his name was Birdie. Tran then leaned in towards Nguyen, and the two

spoke. Within seconds of leaning in to speak with Nguyen, Tran was knocked to the ground by

Nguyen’s punch. Tran does not recall saying anything that would have provoked this response.

After the attack by Nguyen, Tran reports that he was attacked by one or more men.

Frightened, Tran ran in front of the stage area and pulled an AMT handgun from his pocket.

Tran testified that he pulled his gun before there were further threats from Nguyen. He conceded

that, at the time he pulled his gun, he was the only one displaying deadly force.

Kite, a friend of Tran’s, pulled Tran towards the game room. As he was being pulled,

Tran fell. As a scare tactic, Tran fired one shot in the air. He did this not because he feared for

his life; instead, according to Tran, he intended to scare Nguyen. After he fell, Tran recalls

looking directly at Nguyen, who was running at him with a chair, looking as though he intended

to harm Tran. Believing that Nguyen was going to strike him with the chair and taking into

account Nguyen’s group of friends, Tran saw that he was outnumbered and was frightened that

he would be seriously injured or killed. Tran yelled at Nguyen to stay back. Tran then pointed

his gun at Nguyen, who was facing him, and fired.

After the initial shot, Nguyen fell to his right and ceased his charge on Tran. Tran later

testified that he shot at Nguyen several times as Nguyen ran toward him, and saw him fall to the

floor after he finished shooting. Tran denied shooting Nguyen in the back.

Pham—a friend of Tran’s—in large part verified most of Tran’s version of events.

Although he did not see the blow that initiated the confrontation between Tran and Nguyen,

5
Pham came to Tran’s defense when he saw Tran on the floor with Nguyen and Loc Tran 3

stomping on him. After Pham helped Tran to break free of the fight, Tran began backing up

towards the restroom area. By that time, the fight had been broken up. Nonetheless, Nguyen

chased Tran down. Pham next witnessed Tran holding a gun with Nguyen standing

approximately five feet in front of Tran holding a chair. When Nguyen ran at Tran with the

chair, Tran fired at Nguyen. At that point, Pham ducked for cover and did not see anything else.

A chair with blood spots, split wood, and one broken leg was found in the alcove leading to the

restrooms.

Other witnesses to the event tell a different story. Kathy Nguyen, 4 who was transported

from prison to testify at trial, testified that she, Nguyen, Tran, Loc, Pham, a person named “Bi,”

and Michael Tran were all seated together at a table inside the nightclub. Although Tran and

Nguyen were seated next to each other, she did not see the two arguing while they were seated at

the table. When Tran touched Nguyen on the shoulder, Nguyen pushed or punched Tran. After

the two began to fight, Kathy assumed Loc stopped the fight. After the scuffle ended, Nguyen

walked by the stage, where Kathy was standing. She then felt Tran nudge her, and she saw a gun

in his hand. As Kathy was standing between Tran and Nguyen, Tran raised his gun and shot.

Although it did not appear that Tran was shooting at Nguyen, Nguyen was lunging at Tran when

the initial shot was fired. The scene then became chaotic, with people ducking and running.

Nguyen ran towards the game room, where Tran chased him down and shot him. At least five or
3
Loc Tran, who is unrelated to Nam Bryan Tran, was Nguyen’s brother-in-law.
4
Though Kathy was unrelated to Nguyen, she considered him to be a close friend.

6
six shots were fired, and when he was hit in the back, Nguyen fell to the floor. After Nguyen

collapsed, Tran quit shooting and fled the scene. The entire incident occurred within

approximately ten minutes of Tran’s arrival at the club.

Loc was seated next to Pham at Saigon Nites on the evening of the shooting. Although

Loc did not see Nguyen’s initial attack on Tran, when he saw the two fighting, he ran over to try

and stop it. Loc grabbed Nguyen by the elbow and tried to pull him away from Tran. He denied

kicking or hitting Tran after Tran was down. Pham then grabbed Loc and held him back. While

Pham was still holding Loc, Tran pulled a gun from his pocket and shot Nguyen, who was

standing two feet from Tran. He denied witnessing Nguyen attack Tran with a chair.

Dr. Lloyd White, a pathologist employed by the Tarrant County Medical Examiner,

performed an autopsy on Nguyen’s body. Nguyen suffered six gunshot wounds, two of which

were fatal. The first fatal wound entered Nguyen’s upper mid-back near the base of the neck.

White opined that Nguyen might have been lying face down on the floor when this wound was

inflicted because the projectile did not exit the body but was recovered under the skin on the

front of the abdomen. Conversely, the projectile may not have exited simply because it slowed

and stopped at that point. The second fatal wound entered the back of the right shoulder. The

projectile causing this wound exited the body on the lower right front of the abdomen. Both of

these wounds were back entrance wounds which generally traversed from back to front and

downward through portions of the chest and abdominal cavities. Although the two fatal wounds

7
entered Nguyen’s back, White could not determine if these wounds were inflicted while Nguyen

was leaning forward. 5

Nguyen also suffered defensive wounds to his hand and forearm caused by bullet

fragments. These wounds likely resulted from Nguyen raising his arms to defend or block

against the gunshots.

After the shooting, Tran left the nightclub and fled to his apartment in a car-jacked

vehicle. He then drove to Houston with his girlfriend, where he remained for several months

until his arrest on April 3, 2012, following a routine traffic stop.

The reasonableness of a belief that deadly force is being threatened is measured by the

objective standard of an ordinary and prudent person. Echavarria v. State, 362 S.W.3d 148, 154

(Tex. App.—San Antonio 2011, pet. ref’d). A rational jury could have concluded Tran’s belief

that Nguyen threatened him with deadly force was not objectively reasonable. It is undisputed

that Tran was armed with a handgun while Nguyen was unarmed. The question of whether

Nguyen charged Tran with a chair is disputed; while there were blood spatters on the chair, there

was no testimony that the chair was struck by a bullet. Kathy testified that Nguyen did not attack

Tran with a chair. A video recording of the events in the club on that fateful evening is of poor

quality, but could be viewed as depicting a man, identified as Nguyen, using a chair to hide

behind or protect himself. Moreover, even though Tran and Nguyen engaged in a physical

5
Blood tests suggest that Nguyen ingested a significant amount of cocaine within a fairly short period of time,
probably a few hours prior to his death.

8
altercation, there is evidence that after the confrontation was resolved, Tran drew his gun,

pursued Nguyen, and shot him.

The jury was required to consider all evidence in deciding if Tran reasonably believed

that deadly force was immediately necessary to protect himself against unlawful deadly force by

Nguyen. Tran relies on the evidence that Nguyen charged at him with a chair, that he was

attacked by one or more additional men in the initial confrontation, and that he believed he was

outnumbered. This testimony is not entirely consistent with Tran’s claim that his friend, Kite,

pulled him toward the game room, away from Nguyen, after the initial scuffle.

A video recording of the incident depicts the initial blow by Nguyen. The ensuing melee

was not captured on camera. However, the fact that this initial confrontation was short-lived is

evidenced by the recording itself, which depicts Tran leaving the area of the scuffle and reaching

in his pocket for a gun within ten seconds of the initial blow. The poor quality of the video

recording renders it of little use in determining the precise events as they unfolded; it does,

however, depict club patrons diving for cover after the initial shots were fired, within twenty

seconds of the time Tran reached into his pocket to retrieve his gun.

It is the sole province of the jury to resolve conflicting evidence, to evaluate witness

credibility, and to determine the weight accorded to witness testimony. See Cain v. State, 958

S.W.2d 404, 408–09 (Tex. Crim. App. 1997). A reasonable juror could have concluded that

Tran, rather than fearing for his life, pursued Nguyen and shot him after Nguyen’s initial attack.

The jury’s decision rejecting Tran’s claim of self-defense was one a rational juror could make

9
when presented with the facts of this case. The evidence is sufficient to support the jury’s

rejection of self-defense.

II. Error in the Application Paragraph of the Court’s Charge Was Harmless

Tran argues in his second point of error that the trial court erred by failing to properly

apply the law of self-defense in the court’s charge. More precisely, Tran complains of a portion

of the application language, which states, “[I]f you should have a reasonable doubt as to whether

the Defendant was acting in defense on said occasion under such foregoing circumstances, then

you should give the Defendant the benefit of that doubt and find him not guilty.” 6 Because this

paragraph utilizes the term “defense” rather than “self-defense,” Tran claims that use of the word

“defense” and omission of the phrase “self-defense” could have lead the jury to believe that

defense and self-defense were two different issues. He thus postulates that the jury could have

mistakenly failed to acquit because there was no evidence of defense of another person.

A. Applicable Law and Standard of Review

“Our first duty in analyzing a jury-charge issue is to decide whether error exists. Then, if

we find error, we analyze that error for harm.” Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim.

App. 2005) (citing Middleton v. State, 125 S.W.3d 450, 453 (Tex. Crim. App. 2003)). The

degree of harm required to reverse the trial court’s judgment depends on whether or not the

appellant objected to the charge before it was given to the jury. Id. If the defendant has properly

6
The trial court’s instructions to the jury included a full abstract instruction of the law on self-defense.

10
objected to the charge, we need only find “some harm” to reverse the trial court’s judgment. Id.

at 743–44 (citing Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g)).

If the defendant fails to object, however, or states that he has no objection to the charge,

“we will not reverse for jury-charge error unless the record shows ‘egregious harm’ to the

defendant.” Id. In determining whether egregious harm exists, we examine the charge in its

entirety, the state of the evidence, the argument of counsel, and any other relevant information in

the record. Id.

Tran did not object to the jury charge at trial on the same ground as is now presented on

appeal. Here, he complains that the jury charge used the word “defense” rather than “self-

defense.” At trial, his sole objection was that the provocation portion of the instruction should

not have been given because it was not supported by the evidence.

The State contends that Tran failed to preserve any error related to the self-defense

application paragraph by failing to raise that objection at trial. While it is true that the omission

of a defensive issue from the jury charge must be properly preserved by a defendant’s request or

objection, Posey v. State, 966 S.W.2d 57, 60–61 (Tex. Crim. App. 1998), it is also true that when

a trial court includes an instruction on a defensive issue in its charge, that instruction must be

correct, Vega v. State, 394 S.W.3d 514, 515 (Tex. Crim. App. 2013). Accordingly, any error in

the charge actually given is subject to appellate review. Id. at 516. Because no proper objection

was made at trial, reversal is required only if the error caused egregious harm. Id. at 519.

11
 Here, the trial court included the law of self-defense in the abstract portion of the charge

but failed to include the phrase “self-defense,” as opposed to “defense,” in the application

paragraph. This was an error.

B. The State of the Evidence

First, the jury charge provided a detailed explanation of the law on self-defense. This

detailed explanation never mentioned the word “defense”; instead, it only referenced “self-

defense.” Additionally, the charge included application instructions on the law of self-defense.

The paragraph that precedes the complained-of language discusses the right of a person “to

defend his life and person from apparent danger” caused by the threat or use of “unlawful deadly

force” as part of the right of self-defense. The paragraph that includes the complained-of

language parallels the previous discussion of the right of self-defense requiring the actor have

reasonable apprehension of the need to protect himself from “unlawful deadly force.”

The entirety of the charge, read in context, made clear to the jury that if they believed

Tran acted reasonably in defending himself against Nguyen’s use of “unlawful deadly force,”

they should find Tran “not guilty.” The charge provided the jury with sufficient instruction to

fully consider and give effect to Tran’s claim of self-defense. There is simply no evidence that

the jury was confused by the trial court’s use of “defense” rather than “self-defense.” Further,

the instruction could be read as more favorable to Tran by broadening the defensive concept to

include any “defense,” whether personal or for another.

We must also assess whether Tran suffered actual harm in light of the state of the

evidence. Vega, 394 S.W.3d at 521. As previously noted, the evidence at trial included Tran’s

12
testimony regarding self-defense. Although self-defense was Tran’s sole defensive theory, the

evidence offered to support it was thoroughly disputed. There was ample evidence that after the

initial scuffle subsided, Tran pulled a gun, pursued Nguyen, who was unarmed, and shot him.

Nguyen suffered two fatal gunshot wounds in the back.

C. The Argument of Counsel

Neither Tran nor the State ever indicated that the law pertaining to the defense of others,

as opposed to the law of self-defense, applied. The State’s arguments at trial focused on

evidence indicating that Tran did not act in self-defense. The State argued that Tran was angry,

uninjured, and unafraid of Nguyen and emphasized the fact that Tran did not walk away when he

had the chance to do so. Conversely, Tran maintained that he acted in self-defense and went into

a fair amount of detail to further explain the law of self-defense and how Tran’s actions fit within

the scope of that concept.

Based on the foregoing, we hold that the trial court’s inclusion of the term “defense”

rather than “self-defense” in the application paragraph of the charge was harmless.

III. The Evidence Supports the Inclusion of Provocation in the Jury Charge

Tran next complains that the trial court’s inclusion of a provocation instruction in the jury

charge was error because the evidence did not warrant such an instruction.

A. Applicable Law and Standard of Review

“[T]he jury is the exclusive judge of the facts, but it is bound to receive the law from the

court and be governed thereby.” TEX. CODE CRIM. PROC. ANN. art. 36.13 (West 2007). A trial

court must submit a charge setting forth the “law applicable to the case.” TEX. CODE CRIM.

13
PROC. ANN. art. 36.14 (West 2007). “The purpose of the jury charge . . . is to inform the jury of

the applicable law and guide them in its application.” Delgado v. State, 235 S.W.3d 244, 249

(Tex. Crim. App. 2007). “It is not the function of the charge merely to avoid misleading or

confusing the jury: it is the function of the charge to lead and prevent confusion.” Id.

Generally, a person may not use self-defense if the actor “provoked the other’s use or

attempted use of unlawful force . . . .” TEX. PENAL CODE ANN. § 9.31(b)(4) (West 2011).

A charge on provocation is required when there is sufficient evidence (1) that the
defendant did some act or used some words which provoked the attack on him,
(2) that such act or words were reasonably calculated to provoke the attack, and
(3) that the act was done or the words were used for the purpose and with the
intent that the defendant would have a pretext for inflicting harm upon the other.

Smith v. State, 965 S.W.2d 509, 513 (Tex. 1998). Each of the three elements may be proved

circumstantially. Id. at 515, 517–18. A provocation instruction should be submitted to the jury

only “when there is evidence from which a rational jury could find every element of provocation

beyond a reasonable doubt.” Id. at 514. Our inquiry is whether “a rational jury could have found

provocation beyond a reasonable doubt, viewing the evidence in the light most favorable to

giving the instruction.” Id.

B. Application of Law to Facts

Here, there is evidence to support the inclusion of a provocation instruction in the jury

charge. Kathy testified that while she, Tran, and Nguyen were seated at the table, Tran was

talking loudly and banging his beer bottle on the table. Tran was told to “chill out,” as he was

annoying the group. Shortly thereafter, Nguyen asked Tran if his name was Birdie. As clearly

depicted on the video recording, Tran leaned forward, put his arm on Nguyen’s shoulder, and

14
said something to Nguyen. In response, Nguyen immediately pushed Tran back, stood up, and

punched Tran. Although Tran claims he cannot remember what he said to Nguyen that evidently

provoked a quick and violent response, the jury was free to infer that the words Tran spoke were

designed to provoke Nguyen. Given that Tran shot Nguyen less than one minute after these

words were spoken, the jury could easily infer that Tran’s words were spoken with the intent to

create a pretext for inflicting harm on Nguyen. Id. at 515 (knowing precise words of provocation

not essential); Matthews v. State, 708 S.W.2d 835, 838 (Tex. Crim. App. 1986) (holding that

words alone may constitute provocation justifying provocation charge); Kennedy v. State, 193

S.W.3d 645, 655 (Tex. App.—Fort Worth 2006, pet. ref’d) (“It will be enough if the evidence

allows an inference beyond a reasonable doubt that the complainant attacked the defendant in

response to something the defendant did or said.”).

Whether the provocative statement was made with the intent of establishing pretext for

Tran to harm Nyguen is a jury question. Intent is a matter of fact to be determined from all of

the circumstances. Smith, 965 S.W.2d at 519. The Texas Court of Criminal Appeals has found

that it is rarely possible to determine the issue as a matter of law. Id. (“These cases illustrate

exceptional and extraordinary situations where the jury is prevented from considering the

question of what the defendant’s intent was in provoking an attack from the deceased.”); Harrod

v. State, 203 S.W.3d 622, 629 (Tex. App. Dallas—2006, no pet.) (finding that jury could have

reasonably determined that accused intended to goad victim into fight). The facts of this case are

not so rare or exceptional as to preclude the jury’s consideration of the issue of intent.

15
 Because there was evidence from which a rational trier of fact could conclude beyond a

reasonable doubt that Tran provoked the altercation with Nguyen, the trial court did not err by

instructing the jury on the law of provocation.

Even assuming the submission of a provocation instruction was not warranted by the

evidence, Tran is unable to show actual harm. 7 Our review of the contested and uncontested

evidence, as discussed above, and the jury arguments for both sides reflects that Tran suffered no

actual harm as a result of any error in the submission of the provocation instruction. In its

closing argument, the State focused on issues pertaining to self-defense, arguing that rather than

being in fear of his life, Tran was angry. The State also emphasized the point that Tran and

Nguyen did not know one another and that there “were no issues between them.” The State

made two relatively brief references to provocation during the entirety of its closing argument,

and the defense addressed the issue in equally abbreviated terms. The focus of jury argument,

for both sides, was on the application of the law of self-defense to the facts of this case.

Furthermore, we believe that any possible error associated with the inclusion of the

provocation instruction in the jury charge was mitigated by the inclusion of the following

instruction:

On the other hand, if you find from the evidence that the acts done or
language used by the Defendant, if any, were not, under the circumstances,
reasonably calculated or intended to provoke a difficulty or an attack by deceased
upon the Defendant, or if you have a reasonable doubt thereof, then in such event,

7
Because Tran timely objected to the submission of the provocation instruction, any error in the submission of the
provocation instruction must be evaluated to determine if such error was “calculated to injure the rights of the
defendant.” TEX. CODE CRIM. PROC. ANN. art. 36.19 (West 2006); Almanza, 686 S.W.2d at 171. In other words, if
there was an objection, reversal is required if the accused suffered “some harm” from the error. Almanza, 686
S.W.2d at 171. The harm must be actual and not just theoretical. Id. at 174.

16
 Defendant’s right of self-defense would in no way be abridged, impaired, or
lessened, and if you so find, or if you have a reasonable doubt thereof, you will
decide the issue of self-defense in accordance with the law on that subject given
in other portions of this charge, wholly disregarding and without reference to the
law on the subject of provoking the difficulty.

The jury charge, as submitted, left the issues of self-defense and provocation to the jury,

and after weighing the evidence, the jury ultimately rejected Tran’s assertions of self-defense and

found him guilty of the charged offense. See Smith, 965 S.W.2d at 514–18. As such, we cannot

conclude that the provocation instruction resulted in actual harm to Tran.

IV. The Admission of Evidence Regarding Tran’s Knowledge of Gun Laws Was Not an
Abuse of Discretion

In his next point of error, Tran complains that the trial court abused its discretion in

admitting evidence reflecting Tran’s knowledge of gun laws. On cross-examination, Tran

testified, without objection, that he had twice been convicted of felony narcotics offenses, the

most recent of which occurred in 2008. The State asked Tran whether he understood that his

status as a convicted felon prohibited him from owning a firearm. Tran answered affirmatively,

after which his attorney lodged a general relevancy objection. The State maintained that Tran’s

knowledge that, as a convicted felon, he was prohibited from owning a firearm was relevant to

his self-defense claim. “It’s contextual as part of the facts in the case from the standpoint of

having a firearm there.” The trial court overruled Tran’s objection.

A trial court’s decision to admit or exclude evidence is reviewed only for abuse of

discretion. Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010). A trial court does

not abuse its discretion if the decision to exclude evidence is within the “zone of reasonable

disagreement.” Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on
17
reh’g); Marsh v. State, 343 S.W.3d 475, 478 (Tex. App.—Texarkana 2011, pet. ref’d). So long

as decisions fall within that zone, we may not substitute our own decision for that of the trial

court. Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003).

Our evidentiary rules define “relevant evidence” as that which has “any tendency to make

the existence of any fact that is of consequence to the determination of the action more probable

or less probable than it would be without the evidence.” TEX. R. EVID. 401. Irrelevant evidence

is inadmissible. TEX. R. EVID. 402.

The State maintains that Tran’s claim of self-defense made relevant his knowledge that,

as a convicted felon, he was not permitted to own a firearm. 8 Tran maintained in voir dire, in his

opening statement, and indeed throughout the entire course of the trial that he shot Nguyen in

self-defense. Under this theory, the jury was called on to decide if Tran acted reasonably on the

night in question. Both Tran and the State addressed the issue of reasonable conduct during

closing arguments. The State argued, and we agree, that Tran’s decision to bring a firearm into

the club when he knew he was prohibited from owning such a weapon was relevant to the

question of whether his conduct in shooting Nguyen was reasonable under the circumstances.

Because the trial court’s decision to admit evidence of Tran’s knowledge that he was

prohibited from owning a firearm falls within the zone of reasonable disagreement, the trial court

did not abuse its discretion in admitting this evidence.

8
Our law forbids a convicted felon from possessing a firearm within five years from the date of his release from
confinement or community supervision. TEX. PENAL CODE ANN. § 46.04(a)(1) (West 2011). That five-year
prohibition extends indefinitely to any location other than the premises at which the person lives. TEX. PENAL CODE
ANN. § 46.04(a)(2) (West 2011).

18
V. The Trial Court Did Not Abuse its Discretion in Limiting Loc Tran’s Testimony

In his final point of error, Tran complains that the trial court abused its discretion by

impermissibly limiting the testimony of Loc. During cross-examination, Tran’s attorney asked

Loc if he knew a person called “Blackie.” Loc answered affirmatively. Counsel next asked Loc

if Blackie killed Julie, the State lodged a relevance objection, and the following discussion at the

bench ensued:

[Defense Counsel]: Christy and Lily were fighting, and Julie. Blackie
came up and shot Julie, and he’s in the pen for it.

THE COURT: Okay.

[Defense Counsel]: My Defendant is best friends with Christy and Lily.

THE COURT: Okay.

[Defense Counsel]: That’s where the bad blood is, and that’s where the
angst and the animosity, and that’s what he won’t admit.

THE COURT: Okay.

[Defense Counsel]: It’s relevant because there was bad blood and the
deceased was the aggressor in the fight, and my guy killed him in self-defense.

....

THE COURT: But this witness just said that he did not know your client.

[Defense Counsel]: I know, and he’s lying.

THE COURT: Well, that may very well be, but that means that at this
point what you’re saying is not relevant.

The trial court later permitted Tran to submit a bill of exception outside the presence of

the jury, in which Loc testified that (1) his sister-in-law, Julie, was killed several years ago

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during a fight with two women, Christy and Lily, (2) a man who went by the name “Blackie,” of

Laotian descent, shot and killed Julie, and (3) Blackie is currently in prison after having been

convicted of killing her.

Loc testified that he did not know Tran and did not have bad feelings toward Tran prior

to Nguyen’s death. As far as Loc was aware, Nguyen did not know Tran prior to the night of

Nguyen’s death. Loc did not know why Nguyen punched Tran and was unaware of whether his

family members had bad feelings toward Tran prior to the shooting. Loc was further unaware of

the relationship the two girls who fought with Julie might have had with Tran.

The excluded testimony failed to establish the existence of “bad blood” between Tran and

Nguyen. Loc testified that he knew of no “bad blood” and that Tran and Nguyen did not know

each other prior to the night of the shooting. Tran also testified that he did not know Nguyen

prior to the evening in question. In short, the excluded testimony did not have the potential of

making a fact of consequence—the existence of a feud between the families of Nguyen and

Tran—more or less probable than it would be without the excluded testimony. We find no abuse

of discretion in the exclusion of the proffered evidence.

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VI. Conclusion

We affirm the judgment of the trial court.

Jack Carter
Justice

Date Submitted: January 21, 2014
Date Decided: March 4, 2014

Do Not Publish

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