Pham v. State

639 S.W.3d 708

Happy Tran PHAM, Appellant

v.The STATE of Texas

NO. PD-0287-20

Court of Criminal Appeals of Texas.

Delivered: February 9, 2022

Clinton Morgan, Houston, for State.

Brittany Lacayo, Houston, for Appellant.

Keller, P.J., delivered the opinion of the Court in which Hervey, Yeary, Newell, Keel and McClure, JJ., joined.

Before us are two distinct issues, one at the guilt stage and one at the punishment stage. The guilt stage issue is whether Appellant was entitled to a "threat of deadly force" instruction under Penal Code section 9.04. We conclude that he was not entitled to such an instruction because, by shooting the victim, he acted contrary to the statute's requirement that his purpose in threatening deadly force be "limited to creating an apprehension that he will use deadly force if necessary." The punishment stage issue is whether trial counsel was ineffective for failing to call punishment stage witnesses to give positive character testimony about Appellant. We conclude that prejudice has not been established because Appellant's status as a fugitive and drug dealer made the proposed positive character testimony by these witnesses problematic. A positive character assessment by a witness who was ignorant of Appellant's status and activities would likely be seen as stale or uninformed, while a positive character assessment by a witness who was aware of these things would likely be discounted as valueless because the witness was not a good judge of character. In addition, cross-examination of the latter type of witness would likely have resulted in eliciting more bad-character evidence about Appellant. Concluding that Appellant's guilt and punishment stage contentions are without merit, we affirm the judgment of the court of appeals.

I. BACKGROUND

A. The Incident and Appellant's Flight

Appellant shot and killed Pierre Mai. He claimed that he shot Mai in self-defense because he perceived that Mai was reaching for his waistband toward his own weapon. Appellant and Mai had dated the same woman, and for this, or possibly other reasons, they had an antagonistic relationship with each other. On the evening of the killing, Appellant went to a restaurant to join his cousin's family for dinner. Before arriving, Appellant received a text message from his cousin's wife that Mai was at the restaurant. The restaurant's security video for that evening showed that Appellant entered, first looked in the direction of his cousin's family, but then pulled a gun out of his waistband and walked up to Mai's table, which was off-camera. While on camera, Appellant carried his gun by his side and did not point it at anyone.

Appellant testified that he noticed a commotion in the direction of Mai's table and perceived Mai to be reaching toward his waistband. Knowing Mai to carry a gun, Appellant drew his own weapon. Appellant claimed that he did so only as a warning to Mai, in an effort to de-escalate the situation, but as he approached Mai's table, he saw Mai fumble to extract his own gun and begin to point it at Appellant. Appellant claimed that he then shot Mai twice, aiming low because he did not intend to kill him. According to Appellant, he shot Mai the second time because Mai had begun to raise his own gun as he was falling backward from the first shot.

Mai's gun was found next to his body on the restaurant floor. Appellant fled the scene, and he successfully evaded apprehension for the next ten years. During that time, he sold marijuana to make money.

B. Trial and Motion for New Trial

At the guilt stage of trial, the trial judge instructed the jury on the law of self-defense but refused Appellant's request to include an instruction on the law of threats as justifiable force, under Section 9.04. The jury found Appellant guilty of murder. During the punishment stage of trial, defense counsel called only two witnesses—Appellant's older brothers—who testified that they thought Appellant would do well with a probated sentence. In closing argument, counsel argued that Appellant did not pose a danger of future violence:

I would submit to you that in this case, Happy Pham is someone that you should not be afraid of. This was a very specific conflict with a very specific person that happened over a decade ago. The State has not introduced any evidence that Happy Pham has been a physical threat to anyone since that point. And while I understand that you're mad at him for putting himself in this position and not turn around and not leaving that establishment, there just isn't evidence that would justify a finding that he is a threat to society.

Counsel also pointed out that Appellant did not have a prior felony conviction. The jury imposed a life sentence.

In a motion for new trial, Appellant alleged that his trial attorney was ineffective for failing to prepare his brothers to testify and for failing to present other witnesses at the punishment stage. In an affidavit, the trial attorney stated that he believed there was a strong likelihood that Appellant would be acquitted on the basis of self-defense. The trial attorney noted that challenges would come with presenting "positive" witnesses at the punishment stage, given that they would almost certainly fall within two categories. The first category of witnesses would be aware that Appellant had been hiding from law enforcement for a decade and was selling marijuana throughout that period. The second category of witnesses would have been unaware of this activity because they had not had contact with Appellant for the decade preceding trial. Defense counsel further stated:

I made a conclusory assumption that Happy Pham's friends and family who stayed in contact with him during the time he was hiding and selling marijuana would not have made good punishment witnesses because they would have been exposed to damaging cross-examination about their knowledge of Mr. Pham's activities during the time period of their relationships with him. As a result of my assumption to this effect, combined, with my belief that the self-defense issues would sufficiently mitigate Mr. Pham's sentence if there was one, I made no effort to further investigate the possibility that punishment witnesses existed who could provide "net positive" punishment testimony on Mr. Pham's behalf. My failure to investigate the possibility that favorable punishment witnesses existed was not based on any trial strategy. During the punishment phase of trial, I offered the testimony of two of Happy Pham's brothers, Long Pham and Dung Pham. I met with both witnesses prior to their testimonies, but my decision to offer their testimonies at the punishment phase was rushed and no in-depth preparation had been conducted.

Also attached to the motion for new trial were twenty affidavits from individuals who could have been called as witnesses during the punishment phase of trial. These affidavits talked about positive character traits possessed by Appellant. In general, the affidavits stated that Appellant is a good individual who is friendly and kind, not known by the affiants to be violent or aggressive, and not a danger to the public. Many of the affidavits stated that the affiant would have asked for leniency on Appellant's behalf, and some affidavits from family members talked about the effect of Appellant's prosecution on them.

The trial court denied the motion for new trial.

C. Appeal

The court of appeals affirmed the trial court's judgement.¹ We limit our discussion of its opinion to the claims before us on discretionary review.

1. Instruction on Threat of Deadly Force

One of Appellant's claims on appeal was that the trial court should have submitted his requested instruction on the threat of deadly force under Penal Code section 9.04. The court of appeals recited Section 9.04, which states that, under certain circumstances, the threat of deadly force does not constitute the use of deadly force.² The court extensively discussed our prior case of Gamino v. State ,³ which construed the statute.⁴ The court observed that Gamino found Section 9.04 to be part of the law of self-defense and not a "third variety" of self-defense.⁵ The court concluded that Section 9.04 applies only when "deadly force" was not used,⁶ and that it did not apply in Appellant's case because he used deadly force rather than merely threatening deadly force.⁷

2. Failure to Present Mitigating Witnesses

One of Appellant's other claims on appeal was that counsel was ineffective for failing to present mitigating evidence at the punishment stage of trial. The court of appeals concluded that Appellant's trial attorney did not perform deficiently, despite the attorney's profession otherwise.⁸ The appellate court found that the trial attorney's strategy was reasonable in light of the dilemma created by Appellant's ten year evasion of the police and his life as a drug dealer.⁹ According to the court of appeals, "trial counsel faced the dilemma of calling friends and family to testify at the punishment phase when the witnesses either had no contact with appellant for the past ten years, possibly rendering any opinions of appellant's character stale, or possibly had knowledge of or were complicit in appellant's evading capture or had knowledge of appellant's drug-dealing, which could have resulted in unfavorable or detrimental testimony at trial."¹⁰ The court of appeals also concluded that "[p]rioritizing appellant's self-defense claim over the presentation of mitigation witnesses that had no knowledge of appellant's current character, or possibly had knowledge of appellant's drug-dealing activities, or possibly had helped appellant elude capture, is a reasonable strategic decision."¹¹

The court of appeals also concluded that Appellant failed to establish prejudice.¹² The appellate court explained that establishing prejudice required showing a reasonable probability that, but for the attorney's errors, "the sentencing jury would have reach a more favorable verdict."¹³ The court...