In The 

Court of Appeals 

Seventh District of Texas at Amarillo 

 

No. 07-22-00084-CR 

 

LOPPHAY GUM PRATOMMARATH, APPELLANT 

V. 

THE STATE OF TEXAS, APPELLEE 

On Appeal from the 108th District Court 

 Potter County, Texas 

Trial Court No. 81,969-E-CR, Honorable Douglas R. Woodburn, Presiding 

April 19, 2023 

MEMORANDUM OPINION 

Before PARKER and DOSS and YARBROUGH, JJ. 

Lopphay Gum Pratommarath, Appellant, shot and killed Husin Bi and was charged 

with felony murder.1 He elected a jury trial, was convicted of murder as indicted, and was 

sentenced to life in prison. By a sole issue he complains of charge error. Specifically, 

Appellant contends that the jury was not properly instructed regarding its option to acquit 

1 TEX. PENAL CODE ANN. § 19.02(b).
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him if jurors believed he was acting in defense of a third party when he committed the 

underlying murder. Because we find no error, we affirm. 

BACKGROUND

Appellant operated a gambling establishment in Amarillo, Texas. On March 12, 

2020, Appellant, Bi, and several others were present when an argument broke out. 

Initially, the disagreement was between Bi and two others: Benito Ruiz and Evelyn 

Gonzalez. Ruiz and Gonzalez believed Bi had previously stolen a purse containing a 

large amount of cash from their home. Several witnesses observed portions of this 

interaction and broadly painted it as one instigated, and controlled, by Ruiz. The record 

shows that multiple people, including Ruiz, may have thought Bi had a knife in his pocket 

but no testimony was offered to show that Bi wielded a knife or that Ruiz was objectively 

in danger of being stabbed or cut by Bi.

At some point, Appellant approached the quarrel, pulled out a gun, cocked the 

hammer, and pointed it in the direction of Bi’s head. Bi, apparently not terribly unnerved, 

swatted at the gun several times. The last time coincided with the sole, and fatal, shot to 

his head. The overall impression of the witnesses was that the shooting was accidental. 

The defensive theory presented at trial was based on defense of a third person, 

specifically, that Appellant was defending Ruiz when he shot Bi. After the close of 

evidence, the jury was instructed on the lesser-included offense of deadly conduct and 

was also instructed on theories of self-defense and defense of a third person. The trial 

court gave the following instruction, which Appellant argues did not sufficiently explain 
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that the jury could acquit if it believed the use of force was immediately necessary to 

protect Ruiz:

Now bearing in mind the foregoing instructions, if you find from the evidence 

beyond a reasonable doubt that on or about the 12th day of March, 2020, 

in Potter County, Texas, the defendant, LOPPHAY GUM 

PRATOMMARATH, did then and there, while in the course of knowingly 

committing a felony, namely, Aggravated Assault with a Deadly Weapon, 

intentionally or knowingly commit an act clearly dangerous to human life, 

namely shooting Husin Bi with a firearm that caused the death of Husin Bi, 

while the defendant was in the course of an[d] in furtherance of the 

commission of the felony offense, and unless you further find from the 

evidence, or you have reasonable doubt thereof, that at the time, the 

defendant reasonably believed that his use of deadly force was immediately 

necessary to protect another, Benito Ruiz, against the use or attempted use 

of any unlawful deadly force by Husin Bi, if there was, and so believing the 

Defendant committed an act clearly dangerous to human life by shooting 

Husin Bi with a firearm which caused the death of Husin Bi, then you will 

find the Defendant guilty as charged in the indictment.

Unless you so find from the evidence beyond a reasonable doubt, or if you 

have a reasonable doubt thereof, you will acquit the defendant and say by 

your verdict, “Not Guilty.”

Now, if you find that self-defense of a third person did not apply and have a 

reasonable doubt thereof, you will acquit the defendant of Murder and next 

consider if the defendant is guilty of Deadly Conduct pursuant to Penal 

Code Section 22.05(b)(1).

No objection to the instruction was lodged. 

APPLICABLE LAW

Appellant contends that the trial court did not correctly charge the jury regarding 

his defensive theory. A claim of charge error triggers a two-step inquiry. First, we 

determine if there was error in the charge. Alcoser v. State, No. PD-0166-20, 2022 Tex. 

Crim. App. LEXIS 186, at *8 (Tex. Crim. App. Mar. 30, 2022). In general, the trial court 

is required to deliver to the jury a written charge distinctly setting forth the law applicable 
4

to the case and the essential elements of the charged offense. Vasquez v. State, 389 

S.W.3d 361, 366 (Tex. Crim. App. 2012). The charge should set forth “the law applicable 

to the case; not expressing any opinion as to the weight of the evidence, not summing up 

the testimony, discussing the facts or using any argument . . . calculated to arouse the 

sympathy or excite the passions of the jury.” Kirsch v. State, 357 S.W.3d 645, 651 (Tex.

Crim. App. 2012) (citing TEX. CODE CRIM. PROC. ANN. art. 36.14)). 

If there is error, we next decide whether an appellant was harmed by the erroneous 

charge. Id. at 649. Because no objection was lodged at trial, Appellant must have 

suffered “fundamental” harm to warrant reversal. Almanza v. State, 686 S.W.2d 157, 171

(Tex. Crim. App. 1985) (op. on reh’g)). This is often referred to as the egregious harm 

standard, which will necessitate a reversal “only if the error is so egregious and created 

such harm that [the defendant] ‘has not had a fair and impartial trial’ -- in short ‘egregious 

harm.’” Id. Harm is assessed “in light of the entire jury charge, the state of the evidence, 

including the contested issues and weight of probative evidence, the argument of counsel 

and any other relevant information revealed by the record as a whole.” Id. 

ANALYSIS

The charge defined for the jury various words and phrases relevant to the case. It 

then discussed self-defense and defense of a third person. Notably, the charge included 

an explanation of self-defense and defense of others:

Under our law, a person is justified in using force against another when and 

to the degree that he reasonably believes the force is immediately 

necessary to protect himself against the other person’s use or attempted 

use of unlawful force.
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A person is justified in using deadly force against another if he would be 

justified in using force against the other in the first place, as set out above, 

and when he reasonably believes that such deadly force is immediately 

necessary to protect himself against the other person’s use or attempted 

use of unlawful deadly force. A person is justified in using force or deadly 

force against another to protect a third person if, under the circumstances 

as he reasonably believes them to be, he would be justified in using force 

or deadly force to protect himself against the unlawful force or unlawful 

deadly force he reasonable [sic] believes to be threatening the third person 

he seeks to protect and he reasonably believes that his intervention is 

immediately necessary to protect the third person. 

It then went on to explain “reasonable belief” and “deadly force” as they applied to the 

defense. Next, it discussed the circumstances where the use of deadly force could be 

presumed to be reasonable by the jury and when, or if, a person would be required to 

retreat prior to using deadly force as a defense. 

After these abstract definitions, the trial court provided the previously complainedof application paragraph and then instructed the jury on two lesser-included offenses of 

deadly conduct differentiated by their requisite mental states—knowingly and recklessly.2 

The application paragraph of the reckless deadly conduct included an instruction on the 

applicability of the defense of others theory but, Appellant argues, this instruction was 

significantly clearer than the instruction given in the felony murder and knowingly deadly 

conduct application paragraphs.

In the “knowingly” deadly conduct instruction, the court gave the following 

instruction:

. . . and unless you further find from the evidence, or you have reasonable 

doubt thereof, that at the time, the defendant reasonably believed that his 

use of deadly force was immediately necessary to protect another, Benito 

Ruiz, against the use or attempted use of any unlawful deadly force by 

2 TEX. PENAL CODE ANN. § 22.05(a) (recklessly), (b) (knowingly). 
6

Husin Bi, if there was, and so believing the Defendant discharged a firearm 

at or in the direction of Husin Bi, then you will find the Defendant guilty 

of Deadly Conduct.

(Emphasis added.)

Conversely, in the next application paragraph, dealing with “reckless” deadly 

conduct, the trial court gave an instruction which ended differently than the previous two 

application paragraphs:

If you find from the evidence beyond a reasonable doubt that on or about 

the 12th day of March, 2020, in Potter County Texas, the defendant, 

LOPPHAY GUM PRATOMMARATH, did cause the death of an individual, 

Husin Bi, by shooting him with a firearm, and the defendant did point a 

loaded firearm at Husin Bi’s head, but further find from the evidence, or you 

have reasonable doubt thereof, that at the time, the defendant reasonably 

believed that his use of deadly force was immediately necessary to protect 

another against the use or attempted [use] of any unlawful deadly force by 

another, if there was, and so believing the Defendant pointed a loaded 

firearm at the Husin Bi’s head which caused the death of Husin Bi, then 

you will acquit the defendant and say by your verdict “Not Guilty.”

(Emphasis added.)

In essence, the first two application paragraphs instructed the jury that, unless it

found the defense of others applicable, it would find Appellant guilty. But in the last 

instruction, the trial court switched the language around to direct the jury to acquit if it

found that Appellant reasonably believed that the use of deadly force was immediately 

necessary. Appellant argues this unfairly confused the jury.

Charges should be clear, not confusing. “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 to 

prevent confusion.” Reeves v. State, 420 S.W.3d 812, 818 (Tex. Crim. App. 2013)

(quoting Williams v. State, 547 S.W.2d 18, 20 (Tex. Crim. App. 1977)). Although it is 
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lengthy, the complained-of legal application paragraph is not, on its face, confusing in 

light of historical practices in charge drafting. Appellant would have us adopt a rule that 

any defensive issue must be followed by an affirmative statement ordering acquittal. 

While that is more direct than stating it in the inverse (“you will acquit” versus “unless you 

find from a reasonable doubt the defense applies, you will convict”), we cannot say that 

the charge, as written, expresses an opinion on the weight of the evidence, sums up the

testimony, discusses the facts, or uses an argument calculated to arouse the sympathy 

or excite the passions of the jury. On their face, both instructions are correct statements 

of law. Both instruct the jury that defense of others is an issue for the jury to resolve and 

that a finding in Appellant’s favor would acquit him. A review of the entire charge, 

evidence presented, and arguments of counsel supports our conclusion.

A review of the entire charge clearly shows that defense of others was an issue in 

the case and that the jury could acquit under that theory. Additionally, both the State and 

the defense believed that defense of others could operate as an acquittal mechanism and 

argued as much during closing arguments. The instructions to the jury given by counsel 

for both parties were clear: if you think defense of others applies, you acquit. Finally, we 

see nothing in the record to suggest that the jurors were actually confused by the charge. 

The jury never asked for any clarification on the jury instructions. On this record, we 

cannot say that the charge was confusing on its face. Finding no error in the charge, we 

overrule Appellant’s sole issue.
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MODIFICATION OF JUDGMENT

In our review of the record, we have identified two errors in the judgment that 

constitute non-reversible error. The judgment lists the statute of conviction as Texas

Penal Code section 19.02(c). However, that statutory provision simply states the degree 

of offense, which in this case is a first-degree felony. The judgment must reflect both the 

degree of offense and the specific offense of conviction. TEX. CODE CRIM. PROC. ANN. art. 

42.01, § 1(13), (14). Also, the judgment reflects a finding of “N/A” on the “Finding of a

Deadly Weapon.” The indictment alleged the use of a deadly weapon and the jury found

Appellant guilty of murder “as alleged in the indictment.” Since the jury made this finding,

the trial court was statutorily required to enter those findings in the judgment. See TEX.

CODE CRIM. PROC. ANN. arts. 42.01, § 1(21) (judgment shall reflect “affirmative findings 

entered pursuant to Article 42A.054(c) or (d)”); 42A.054(c) (“On an affirmative finding 

regarding the use or exhibition of a deadly weapon as described by Subsection (b), the 

trial court shall enter the finding in the judgment of the court.”); 42A.054(d) (“On an 

affirmative finding that the deadly weapon under Subsection (c) was a firearm, the court 

shall enter that finding in its judgment.”).

We have the authority to modify incorrect judgments when the necessary

information is available to do so. See TEX. R. APP. P. 43.2(b). Accordingly, we modify

the trial court’s written judgment of conviction to reflect that the “Statute for Offense” is

section 19.02(b)(3) of the Texas Penal Code. See Jackson v. State, No. 03-18-00417-

CR, 2020 Tex. App. LEXIS 3772, at *4 (Tex. App.—Austin May 6, 2020, pet. ref’d) (mem.

op., not designated for publication) (reforming judgment to reflect the statute for offense

to section 19.02(b)(1), “the statutory provision that defines the offense of intentional and
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knowing murder,” rather than section 19.02(c)). We further modify the judgment to reflect 

an affirmative finding of a deadly weapon—a firearm.

CONCLUSION

We modify the written judgment of conviction as noted above to correct errors and 

affirm the judgment as so modified.

Judy C. Parker

 Justice

Do not publish.