NO. PD-0377-15 

_________________________________ 

IN THE 

COURT OF CRIMINAL APPEALS 

OF TEXAS 

_________________________________ 

NAM BRYAN TRAN 

VS. 

THE STATE OF TEXAS 

_________________________________ 

ON DISCRETIONARY REVIEW FROM THE 

COURT OF APPEALS FOR THE 

SIXTH JUDICIAL DISTRICT OF TEXAS 

AT TEXARKANA 

CAUSE NUMBER 06-13-0087-CR 

_________________________________ 

Appealed from the 371st District Court 

of Tarrant County 

Cause Number 1277354D 

_________________________________ 

PETITION FOR DISCRETIONARY REVIEW 

_________________________________ 

Randy Schaffer 

State Bar No. 17724500 

1301 McKinney, Suite 3100 

Houston, Texas 77010 

(713) 951-9555 

(713) 951-9854 (facsimile) 

noguilt@swbell.net 

Attorney for Appellant 

NAM BRYAN TRAN 

PD-0377-15

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

Transmitted 4/17/2015 1:17:19 PM

Accepted 4/21/2015 1:09:02 PM

ABEL ACOSTA

CLERK
IDENTITY OF PARTIES

Appellant: Nam Bryan Tran 

 Inmate No. 1849011 

 Telford Unit 

3899 State Hwy. 98 

New Boston, Texas 75570 

Trial Counsel: Jim Shaw 

 Mary Young 

 James Renforth 

916 W. Belknap 

Fort Worth, Texas 76102 

Appellate Counsel: Max Striker 

 3000 E. Loop 820 

Fort Worth, Texas 76112 

Trial Prosecutors: Keith Harris 

 Timothy Bednarz 

 401 W. Belknap 

 Fort Worth, Texas 76102 

Appellate Prosecutors: Charles Mallin 

 Andy Porter 

 401 W. Belknap 

Fort Worth, Texas 76102 

Trial Judge: Mollee Westfall 

 401 W. Belknap 

 Fort Worth, Texas 76102 

i 
SUBJECT INDEX

Page

STATEMENT REGARDING ORAL ARGUMENT .......................................... 1 

STATEMENT OF THE CASE .............................................................................. 1 

STATEMENT OF THE PROCEDURAL HISTORY ......................................... 1 

GROUNDS FOR REVIEW ................................................................................... 2 

GROUND ONE ...................................................................................................... 3 

THE COURT OF APPEALS ERRED IN HOLDING THAT THE 

TRIAL COURT DID NOT ABUSE ITS DISCRETION IN 

ALLOWING THE PROSECUTOR TO QUESTION APPELLANT 

ABOUT ILLEGALLY CARRYING A GUN AS A CONVICTED 

FELON AND IN A PLACE LICENSED TO SELL ALCOHOLIC 

BEVERAGES. 

GROUND TWO ..................................................................................................... 7 

THE COURT OF APPEALS ERRED IN HOLDING THAT THE 

TRIAL COURT PROPERLY INSTRUCTED THE JURY ON THE 

DOCTRINE OF PROVOKING THE DIFFICULTY AS A 

LIMITATION ON THE RIGHT TO SELF-DEFENSE. 

CONCLUSION ....................................................................................................... 11 

CERTIFICATE OF SERVICE .............................................................................. 12 

CERTIFICATE OF COMPLIANCE ..................................................................... 12 

APPENDIX ............................................................................................................. 13 

ii 
iii 

INDEX OF AUTHORITIES

Cases Page

Alexander v. State, 740 S.W.2d 749 (Tex. Crim. App. 1987) .......................... 6 

Johnson v. State, 649 S.W.2d 111 (Tex. App.—San Antonio 1983), aff’d on 

 other grounds, 662 S.W.2d 368 (Tex. Crim. App. 1984) ..... 5 

Mendoza v. State, 349 S.W.3d 273 (Tex. App.—Dallas 2011, pet. ref’d) ....... 10, 11 

Stanley v. State, 625 S.W.2d 320 (Tex. Crim. App. 1981) .............................. 9 

Tave v. State, 620 S.W.2d 604 (Tex. Crim. App. 1981) .................................. 9, 10 

Theus v. State, 845 S.W.2d 874 (Tex. Crim. App. 1992)................................. 3 

Rules

TEX. R. APP. P. 66.3(a) ...................................................................................... 7, 10 

TEX. R. APP. P. 66.3(b) ...................................................................................... 7 

TEX. R. APP. P. 66.3(c) ...................................................................................... 10 
STATEMENT REGARDING ORAL ARGUMENT

Appellant does not request oral argument but will present it if the Court 

desires. 

STATEMENT OF THE CASE

 Several people were drinking at a club after a wedding. Austin Nguyen and 

appellant, both of whom were intoxicated,1

 were seated at a table when Nguyen, 

for no reason, “sucker punched” appellant, knocking him to the ground.2

 They 

fought, and appellant pulled out a gun and shot once in the air and several times in 

the direction of Nguyen, who was approaching him with a chair. Two of the shots 

were fatal. Appellant left the scene and was arrested about eight months later. The 

jury rejected self-defense and convicted him of murder. 

STATEMENT OF THE PROCEDURAL HISTORY

 Appellant pled not guilty to murder (second offender) in cause number 

1277354D in the 371st District Court of Tarrant County before the Honorable 

Mollee Westfall. A jury convicted him and assessed his punishment at 99 years in 

prison on April 8, 2013. Jim Shaw, assisted by Mary Young and James Renforth, 

represented him at trial. 

 The Sixth Court of Appeals affirmed appellant’s conviction in an 

 1

 The pathologist testified that Nguyen had a blood alcohol content of 0.06 and enough 

cocaine in his system to suggest that he consumed a significant amount within a few hours of his 

death (5 R.R. 68-69). 

2

 A videotape of this assault was admitted in evidence (4 R.R. 72). 

1
unpublished opinion issued on March 4, 2014. This Court denied his untimely pro 

se motion for an extension of time to file a PDR in number PD-0616-14 on May 

14, 2014. Tran v. State, 2014 WL 859674, No. 06-13-00087-CR (Tex. App.—

Texarkana 2014, no pet.) (not designated for publication) (Appendix). Max Striker 

represented him in the court of appeals, and he represented himself in this Court. 

 This Court granted appellant the opportunity to file an out-of-time PDR on 

March 18, 2015. Ex parte Tran, No. WR-81,760-02 (Tex. Crim. App. 2015). It 

granted an extension of time to July 2, 2015, to file the PDR in number PD-0377-

15 on April 2, 2015. 

GROUNDS FOR REVIEW

1. Whether the court of appeals erred in holding that the 

trial court did not abuse its discretion in allowing the 

prosecutor to question appellant about illegally 

carrying a gun as a convicted felon and in a place 

licensed to sell alcoholic beverages (6 R.R. 114-17). 

2. Whether the court of appeals erred in holding that the 

trial court properly instructed the jury on the doctrine 

of provoking the difficulty as a limitation on the right 

to self-defense (C.R. 68-69; 6 R.R. 172-73). 

2
GROUND ONE

THE COURT OF APPEALS ERRED IN HOLDING THAT 

THE TRIAL COURT DID NOT ABUSE ITS 

DISCRETION IN ALLOWING THE PROSECUTOR TO 

QUESTION APPELLANT ABOUT ILLEGALLY 

CARRYING A GUN AS A CONVICTED FELON AND IN 

A PLACE LICENSED TO SELL ALCOHOLIC 

BEVERAGES. 

Appellant testified on direct examination that he was sitting at a table in the 

club when Nguyen, whom he did not know, asked, “Is your name Birdie?” (6 R.R. 

87-90). When he did not respond, Nguyen punched him for no reason, and he fell 

to the ground (6 R.R. 90-91, 96-97). Nguyen and other persons hit and kicked him 

(6 R.R. 91). He got up, scared and in a panic, and ran to the stage (6 R.R. 92). He 

pulled a gun and shot in the air as a “scare tactic” to get some “room” (6 R.R. 96). 

Nguyen ran at him with a chair (6 R.R. 97). Being outnumbered, and in fear of 

serious bodily injury and death, he fired shots, and Nguyen fell (6 R.R. 97, 99-

101). 

 The prosecutor elicited on cross-examination that appellant had been 

convicted of possession of more than four grams of methamphetamine in 2008 and 

less than one gram of a controlled substance in 2004 (6 R.R. 112-13).3

 The 

prosecutor asked, “You understand that as a convicted felon, you can’t own a gun, 

 3

 Defense counsel did not attempt to exclude these prior convictions which were 

unrelated to appellant’s credibility, under Theus v. State, 845 S.W.2d 874, 880 (Tex. Crim. App. 

1992). 

3
right?” (6 R.R. 114). The court overruled counsel’s relevancy objection and 

appellant answered yes. The court then conducted a hearing outside the presence 

of the jury. The prosecutor argued that testimony that appellant illegally possessed 

a gun as a convicted felon and that he knew that it was illegal to possess a gun in a 

club was relevant to the reasonableness of his self-defense claim (6 R.R. 114-16). 

Counsel responded that neither appellant’s felony conviction nor his illegal 

possession of the gun was relevant to whether he had a right to defend himself 

from an actual or apparent attack (6 R.R. 115-16). The court overruled the 

objection, observing that appellant’s knowledge that he was violating the law was 

relevant to his self-defense claim (6 R.R. 116-17). Appellant testified before the 

jury that he knew that it was illegal for a convicted felon to possess a gun but did 

not know that it was illegal to possess a gun inside a club (6 R.R. 117-18). 

 The prosecutor argued, in asking the jury to reject self-defense, “Why did he 

even have a gun there in the first place? What does that tell you about him? He’s 

a convicted felon. He has no business even having a gun. He has no business 

going into a bar where it’s illegal to possess a gun. There’s two violations right 

there” (6 R.R. 182). 

 Appellant contended on appeal that the trial court abused its discretion in 

allowing the prosecutor to question him about illegally possessing a gun as a 

convicted felon and in a place licensed to sell alcoholic beverages. The court of 

4
appeals, without analysis or citation to relevant authority, held that the trial court 

did not abuse its discretion because appellant’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.” Tran, 2014 WL 859674 at *9. 

 The decision of the court of appeals conflicts in principle with Johnson v. 

State, 649 S.W.2d 111 (Tex. App.—San Antonio 1983), aff’d on other grounds, 

662 S.W.2d 368 (Tex. Crim. App. 1984). The defendant shot the complainant in a 

bar and was charged with attempted murder. The prosecutor elicited from the 

owner that the bar was licensed to sell beer. The prosecutor asked whether there 

was a sign in the bar that it was a felony to carry a weapon on the premises. The 

trial court sustained an objection, instructed the jury to disregard, but denied a 

motion for mistrial. Thereafter, the prosecutor asked the defendant over objection 

if he knew that, by entering the bar with a gun, he was violating the law by 

carrying a weapon on premises licensed to sell alcoholic beverages. The 

prosecutor argued during summation that the defendant, knowing that it was an 

offense, took a gun into licensed premises so he could shoot someone. The court 

of appeals held that the trial court erred in allowing cross-examination on this 

subject because there was no relationship between unlawfully carrying a gun on 

licensed premises and the charged offense of attempted murder. Id. at 118. The 

5
defendant was harmed because the prosecutor’s argument implied that he 

intentionally committed attempted murder because he intentionally committed the 

offense of carrying a weapon on licensed premises. Id; cf. Alexander v. State, 740 

S.W.2d 749, 763-65 (Tex. Crim. App. 1987) (although defendant was properly 

impeached with felony convictions, reversible error to allow prosecutor to question 

him about making false statement about those convictions when he bought gun 

several months before charged capital murder). 

 Establishing that appellant knew that it is illegal for a convicted felon to 

possess a gun and for anyone to possess a gun in a place licensed to sell alcoholic 

beverages was irrelevant to whether appellant’s use of that gun to defend himself 

was lawful. If Nguyen unlawfully attacked appellant, causing him reasonably to 

fear serious bodily injury or death, he had a right to use deadly force to defend 

himself even if he illegally possessed the gun. Conversely, if he did not reasonably 

fear serious bodily injury or death, he did not have a right to use deadly force to 

defend himself even if he legally possessed the gun. There simply was no 

connection between his knowledge that he could not legally possess a gun as a 

convicted felon or in a place licensed to sell alcoholic beverages and whether his 

use of that gun to defend himself was lawful. Thus, the trial court abused its 

discretion in allowing the prosecutor to question him about these matters. The 

error was harmful in view of the prosecutor’s argument that appellant did not have 

6
a right to use the gun to defend himself because he violated the law by possessing 

it as a convicted felon and in a place licensed to sell alcoholic beverages. 

Discretionary review is required because the holding of the court of appeals 

conflicts in principle with Johnson (which it did not even mention) and this 

important issue of state law has not been, but should be, resolved by this Court. 

TEX. R. APP. P. 66.3(a) and (b). 

GROUND TWO

THE COURT OF APPEALS ERRED IN HOLDING THAT 

THE TRIAL COURT PROPERLY INSTRUCTED THE 

JURY ON THE DOCTRINE OF PROVOKING THE 

DIFFICULTY AS A LIMITATION ON THE RIGHT TO 

SELF-DEFENSE. 

 The State relied on Kathy Nguyen, who was serving a six-year federal 

sentence for conspiracy to distribute ecstasy and marijuana, to testify about how 

the altercation started (4 R.R. 42-44, 79, 82-83).4

 Kathy testified that appellant 

and Austin Nguyen were seated next to each other in the club (4 R.R. 52). 

Appellant was loud, banged a beer bottle on the table, and was told to “chill out” (4 

R.R. 54-55). Appellant touched Nguyen on the shoulder (4 R.R. 56). Nguyen 

knocked appellant to the ground, and they started fighting (4 R.R. 57, 94). 

 

 Appellant testified that Nguyen, whom he did not know, asked, “Is your 

name Birdie?” (6 R.R. 90). When he did not respond, Nguyen punched him for no 

4

 Hoa Duong and Robert Dennie, the only other prosecution witnesses who were present 

when the altercation started, did not see how it started (3 R.R. 107-09, 205). 

7
reason, and he fell to the ground (6 R.R. 90-91, 96-97). Nguyen and other persons 

hit and kicked him (6 R.R. 91). He got up, scared and in a panic, and ran to the 

stage (6 R.R. 92). He pulled a gun and shot in the air as a “scare tactic” to get 

some “room” (6 R.R. 96). Nguyen ran at him with a chair (6 R.R. 97). Being 

outnumbered, and in fear of serious bodily injury and death, he fired shots, and 

Nguyen fell (6 R.R. 97, 99-101). 

 The court instructed the jury in the charge on self-defense (C.R. 66-68). It 

also instructed the jury on provoking the difficulty as a limitation on the right to 

self-defense (C.R. 68-69). Specifically, it instructed the jury to reject self-defense 

if it found beyond a reasonable doubt that, immediately before the difficulty, 

appellant said or did something with the intent to “produce the occasion for 

killing” Nguyen; that his words or acts “were reasonably calculated to, and did, 

provoke a difficulty”; that Nguyen attacked or appeared to attack him with deadly 

force; and that he killed Nguyen (C.R. 69). 

 The prosecutor argued during summation that the jury should reject selfdefense because appellant provoked the difficulty by pulling a gun to scare Nguyen 

rather than to protect himself (6 R.R. 199, 202).5

 

 Appellant contended on appeal that the trial court erred in instructing the 

jury on the doctrine of provoking the difficulty as a limitation on the right to self-

 5

 The prosecutor focused the jury on the wrong point in time. Nguyen’s assault of 

appellant at the table was the difficulty that ultimately resulted in the shooting. 

8
defense. The court of appeals observed that the interaction between appellant and 

Nguyen began when Nguyen asked if his name was Birdie. Tran, 2014 WL 

859674 at *7. The video recording depicted appellant lean forward, put his arm on 

Nguyen’s shoulder, and say something. Id. In response, Nguyen immediately 

pushed appellant back, stood up, and punched him. Id. The court held, “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. 

The court disregarded well-settled precedent in holding that an instruction on 

provoking the difficulty was authorized based on inferences, rather than evidence, 

that appellant said something with the intent to provoke Nguyen to attack him with 

deadly force so he would have a pretext to kill Nguyen. 

 An instruction on provoking the difficulty that is not supported by the 

evidence constitutes an improper limitation on the right to act in self-defense. 

Stanley v. State, 625 S.W.2d 320, 321 (Tex. Crim. App. 1981). A provocation 

instruction is proper where the deceased made the first attack, but was induced to 

do so by words or acts of the defendant reasonably calculated and intended to 

provoke an attack so the defendant could kill him. Tave v. State, 620 S.W.2d 604, 

9
605-06 (Tex. Crim. App. 1981). A provocation instruction is improper where there 

was no evidence that the defendant’s words or acts were intended to provoke an 

attack so he could kill the deceased. Id. at 606. 

 The court of appeals speculated that appellant said something to Nguyen that 

provoked the initial attack and that appellant intended to provoke that attack so he 

could kill Nguyen. The jury cannot properly infer that the defendant made a 

provocative statement, much less that he did so with the intent to provoke an attack 

so he could kill the deceased. Discretionary review is required because the 

decision of the court of appeals conflicts with this Court’s well-settled precedent 

on the issue of whether the evidence raised provoking the difficulty. TEX. R. APP.

P. 66.3(c). 

 The court of appeals also observed in dicta that, even if the provocation 

instruction were erroneous, appellant cannot show “some harm” because the 

charge contained an instruction that the right of self-defense would not be impaired 

if the jury found that he did not provoke the difficulty, and the prosecutor did not 

focus on provocation during summation. Tran, 2014 WL 859674 at *8. The 

harmless error determination conflicts in principle with Mendoza v. State, 349 

S.W.3d 273 (Tex. App.—Dallas 2011, pet. ref’d), which held that an erroneous 

provocation instruction is harmful because it directs the jury not to consider selfdefense at all if it finds there was provocation. Id. at 284. An erroneous 

10
provocation instruction is harmful if, in its absence, there was a chance that the 

jury would have found that the defendant acted in self-defense. Id. at 281-82. 

Furthermore, the prosecutor did argue during summation that the jury should reject 

self-defense because appellant provoked the difficulty (6 R.R. 199, 202). 

 The video recording demonstrates that Nguyen attacked appellant and 

started the fight. Absent the provocation instruction, there was a chance that the 

jury would have found that appellant acted in self-defense. Thus, the erroneous 

instruction resulted in “some harm.” Discretionary review also is required because 

the decision of the court of appeals conflicts in principle with Mendoza (which it 

did not even mention) on the issue of harm. TEX. R. APP. P. 66.3(a). 

CONCLUSION

 This Court should grant discretionary review to resolve these important 

questions of law. 

 Respectfully submitted, 

 /s/ Randy Schaffer 

 Randy Schaffer 

 State Bar No. 17724500 

 1301 McKinney, Suite 3100 

 Houston, Texas 77010 

 (713) 951-9555 

 (713) 951-9854 (facsimile) 

 noguilt@swbell.net (email) 

 Attorney for Appellant 

 NAM BRYAN TRAN

11
CERTIFICATE OF SERVICE

 I served a copy of this document on Charles Mallin and Andy Porter, 

assistant district attorneys for Tarrant County, 401 W. Belknap, Fort Worth, Texas 

76102; and on Lisa McMinn, State Prosecuting Attorney, P.O. Box 12405, Capitol 

Station, Austin, Texas 78711, by United States mail, postage prepaid, on April 17, 

2015. 

 /s/ Randy Schaffer 

 Randy Schaffer 

CERTIFICATE OF COMPLIANCE

 The word count of the countable portions of this computer-generated 

document specified by Rule of Appellate Procedure 9.4(i), as shown by the 

representation provided by the word-processing program that was used to create 

the document, is 2,504 words. This document complies with the typeface 

requirements of Rule 9.4(e), as it is printed in a conventional 14-point typeface 

with footnotes in 12-point typeface. 

 /s/ Randy Schaffer 

 Randy Schaffer 

12
13

APPENDIX

Opinion of the Sixth Court of Appeals