Pham v. State
| Decision Date | 31 October 2019 |
| Docket Number | NO. 14-17-00400-CR,14-17-00400-CR |
| Parties | Happy Tran PHAM, Appellant v. The STATE of Texas, Appellee |
| Court | Texas Court of Appeals |
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.
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
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.
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 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, Appellant denied attempting to provoke violence.
Appellant testified that when he walked into the...
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