### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-17-00155- CR

Cuong T ran, Appellan t

v. The State of Texas, App ellee

F ROM TH E CO UNTY COURT AT LAW NO . 4 O F TRAVIS CO UNTY NO. D-1 -DC- 15- 9001 45, H ONO RAB LE MI KE DENTON, J UDGE P RESIDING

M E M O R A N D U M O P I N I O N

A jury found appellant Cuong Tran g uilty of assaul t aga i nst a family member by strang ulation, a third-deg ree felony , see Tex. Penal Code § 22.01(b)( 2)(B ), and assessed punishment

a t s ix y e a r s ’ im p r is o n me n t. I

n tw o p o in

ts o f e r r o r , T r a n c o n te n d s th a

t th e tr ia l c o u

r t e r r e d in a d mi tt in g evidenc e of an ex trane ous offe nse and tha t he re ceive d ineffe ctive assist ance of counsel. We will aff irm the trial cour

t’s judgme nt of conviction.

BACK GR OUND At trial, Tran’ s neig hbor testified that Tran’ s wife, L oan Dihn (who is often ref err ed
to in the rec ord by her nickname, “Jennifer,” which we will use throug hout this opinion) came to her home. Acc ording to the neig hbor, J ennife r was “extremely upset and cry ing, sobbing,” and “had her hands on her throat.” J ennife r “said she wasn’t safe at home” and “said that she had to jump the fenc e to g et out of the house to come for me and that [Tran] had choked her

. . . to the point that shealmost passed out and had urinated on herse lf.” J ennife r further told the neig hbor, “I ’m tired of this

I can’ t live like this a

ny more I want a divorce .” The ne ighbor called 911. While waiting for he lp to arrive , the neig hbor noticed “ red ma rks” on Jennifer’ s neck. Offic er John Yurcina of

the P flug erville P olice Department testified at t rial that he responde d to the neig hbor’s 911 call. Acc ording to Offic er Yurc ina, J ennife r told him “that she had been assaulted at her residenc e.” J ennife r was “ver y visibly distraug ht and upset” and “had red marks on her neck which later in the interview wer e consistent with being strang led, specific ally with a hand.” J ennife r told the offic er tha t Tran wa s upset and ang ry with her a

nd then assaulted he r: [Officer Yurc ina:] She stated to me that as the arg ument esca lated she beca me fea rful. She mentioned that this was not th e fi rst time this situation that occur red befor e, and she attempted to leave the residenc e to g o to the neig hbor’s house as she usually does. She said that Tran g rabbe d her, pushed her down onto the sofa in the living room and put his hand on her throat apply ing pressure pre v en t i n g h er from brea thing, a

nd also making her f

eel ting ly as if she w ere about to pass out.

Offic er Yurc ina further testified that “the only way that [J ennife r] was able to esca pe that situation

was by kicking [Tran] in the stomach brea king fre e of his g rip, and then esca ping out of a back door, jumping a f

ence and running to the neig hbor’s house.” The S t ate also called Office r Keith Ritchie at t rial, who testified t hat he responde d
to the scene along with Offic er Yurc ina. Offic er Ritchie testified about what the neig hbor told him had happened. He further testified that J ennife r t old him that she wanted to divorce h er h u s band. Acc ording to Office r Ritchie, J ennife r explained to him that Tran “shoved her down on the couch he gra bbed her around the neck, eac h side of t he neck and beg an squeezing.” I n addition, Offic er Ritchie testified, “She said initially she was try ing to fig ht, scra tching , try ing to g et up. She said that

2she starte d to fee l tingly and I believe she went unconscious.” J ennife r also told him that she was

in fea r for her life

. L ater in the trial, the State indicated that it planned to call a witness who would testify

conce rning an i n ci d ent of domestic violence betwee n Tran and J ennife r that alleg edly occur red about 23 y ear s ear lier in 1994. Following a hear ing outside the jury ’s prese nce, the trial court decide d to allow the testimony over Tran’ s objection. The witness, Constable Richard S anders, testified that he was working at a hospital in 1994 when Tran and J ennife r walked in. Acc ording to Constable Sanders, Tran was assisting J ennife r into the emer g ency room, and J ennife r “wa s cry ing and holding the rig ht side of her fac e.” Constable Sanders further testified, “She saw me and stated, he hit me.” Constable Sanders testified, “I had the Asian fema le fill out an assault victim statement and I arr ested the male for assault with injury family violence.” Constable Sanders testified that he transporte d Tran to jail but did not know what happe ned with the ca se af ter that. J ennife r did not testify during the g uilt-innocence phase of trial despite the fac t that she had rec eived a subpoena instructing her to appea r. After hear ing all the evidenc e, the jury found Tran guilty

. At the puni shment phase of trial, sever al wit nesses testified, including J ennife r, who asked the jury to g ive her husband probation. The jury assessed punishment, the trial court rende red its judgment of c onviction, and this appea l followed.

3DISCUSSIO N

Extraneous Of

fense I n his first point of err or, Tran contends that the t ri al co u rt “er red in admitting into evidenc e a twenty -th re e y ear old extraneous offe nse under Art. 38.371 of the Texas Code of Criminal Procedure .”

We revie w the trial court’s decision to admit ev i d en ce for an abuse of discretion. S e e G o n z a le z v . S ta te , 5 4 4 S. W. 3 d 3 6 3 , 3 7 0 ( T e x. Cr im

. A p p . 2 0 1 8 ) ; D a b n e

y v . S ta te , 4 9 2 S. W. 3 d 3 0 9 , 3 1 8 (T ex . Crim. App. 2016); Hennington v. State , No. 03-16-00332-CR, 2018 WL 895037, at * 3 ( T e x. A p p . — Au s ti n F e b

. 1 5 , 2 0 1 8 , p e t. r e f ’ d ) ( me m. o p . , n o t d e s ig

n a te d f o r p u b li c a ti o n )

. A tr ia l c o u

r t abuses its discretion only if “its decision lies outside the zone of rea sonable disag ree ment,” and we “may not substitut e our own decision for that of the trial court.” See Gonzalez , 544 S.W .3d at 370.

At trial, the State arg ued that the court should allow an office r to testify about Tran’ s

arr est for family violence made in 1994. The State contended that the testimony was admissible under Article 38.371 of the Texas Code of Criminal Procedur e and Rule 404(b) of the Texas Rules of Evidenc e. On a

ppeal, the State conce des that “any relianc e on Art. 38.371 for the admissibilit y of evidenc e was err or” beca use Article 38.371 only applies to criminal proce eding s that commence afte r September 1, 2015, while Tran committed the offe nse at issue in this appea l in 2013. See Act of May 31, 2015, 84th L eg ., R.S., ch. 1086, § 4(a) , 2015 Tex. Gen. L aws 3732, 3733 (“The chang e in law made by this Act in adding Article 3 8

. 3 7 1 , C o d e of Criminal Procedur e, applies to the admissibili ty of evidenc e in a criminal proce eding that commence s on or afte r the eff ective date of this Act.”) ; id. § 5 (“This Act takes eff ect September 1, 2015.”). The State never theless arg ues that the trial cour

t properly admitted the evidenc e under Rule 404(b). 4We will uphold the trial court’s evidentiar y ruling if it is corr ect under any applicable leg al theory , even if the trial court g ave the wrong rea son for its ruling

. See Henley v. State , 493 S.W .3d 77, 93 (Tex. Crim. App. 2016); De La Paz v. State , 279 S.W .3d 336, 344 (Tex. Crim. App. 2009); Russell v. State , No. 05-17-00419- CR, 2018 WL 2473818, at *8 (Tex. App.—Dallas J une 4, 2018, no pet. h.) (mem. op., not desig nated for publication); Hopkins v. State , No. 03-16-00746- CR, 2018 WL 1660831, at *12 (Tex. App.—Austin Apr. 6, 2018, no pet. h.) (mem. op., not de signa ted for publi ca t i o n ); Davis v. State , 214 S.W .3d 101, 103 (Tex. App.—B eaumont 2006, pet. ref ’d). There fore , we will uphold the trial cour t’s decision to admit te stimony about the 1994 arr est if the testimony was a dmissibl e under

Rule 404(b). Rule 4 0 4 (b ) p ro v ides, “Evidenc e of a crime, wrong , or other act is not admissible
to prove a person’ s char acte r in order to show that on a parti cu l ar o ccasion the person acte d in

acc ordanc e with the char acte r.” Tex. R. Evid. 404(b)( 1). However, the rule also provides, “This evidenc e may be admissible for another purpose , s u ch as proving motive, opportunity , intent, prepa ration, plan, knowle dg e, identity , absenc e of mistake, or l ack of acc ident.” Id. R. 404(b)( 2). We conclude that the trial court would not have abused its discretion by admitting testimony about the 1994 arr est under Rule 404(b) because the t estimony was relevant to the relationship b etwee n Tran and his w ife. See G arcia v. State , 201 S.W .3d 695, 703 (Tex. Crim. App. 2006) (“[I ]n cases in which the prior rela tionship betwee n the victim and the acc used is a materia l issue, illust rating the
nature of the rela tions h i p m ay b e t he purpose for which evidenc e of prior bad acts will be admissible.”). Multipl e witnesses testified that J en n i fer made statements to them sug g esting that the assault at issue in this case was not the first time that Tran had assaulted her. For example, the

5neig hbor testified t h at J ennife r told her, “I ’m tired of this I can’ t live like this any more I want a

divorce .” And Offic er Yurc ina testified that J ennife r “mentioned that this was not the first time this situation that oc curr ed bef ore.” The testimony

of the 1994 a

rre st provided evidenc e that Tran had assaulted his wife m o re t h an 2 0 y ear s ear lier and sug g ests that the assault for which Tran was on trial was not an a ccide nt or mistake.

I n addition, beca

use J ennife r appar ently decide d not to appea r du ri ng the g uiltinnocenc e p h as e of trial despite having rec eived a subpoena instructing her to do so, the State

rea sonably felt that it neede d to explain her absenc e. For example, the State called a cou n s elor with the Austin Pol ice De partment victim se rvice s unit, who testified about common behavior s of victims of domestic violence and why they may often rema in in an abusive rela tionship and decide
not to repor

t a buse or press char g es ag ainst the abuser . The testimony about the 1994 arr est could sug g est to the jury that J ennife r failed to appea r for trial not beca

use Tran did not assault her, but beca use Tran had place d her in fea r for her safe ty or otherwise manipulated her. See Stulce v. State , N o . 0 5

- 1 4

- 0 1 2 2 6

- CR , 2 0 1 6 WL 4 2 1 8 5 9 4 , a t * 3 ( T e x. A

p p . — D a ll a s A u g . 9 , 2 0 1 6 , n o p e t. ) ( me m. o p . , not desig nated f

or publication) (“[E]vidence of an extraneous offe nse may be admissible f or other non-cha rac ter confor

mity purposes su c h a s s h o w ing the rea son a sexual assault victim failed to repor t the assault promptly or rebutting a defe nsive theory .”) (citing Brown v. State , 657 S.W .2d 117, 119 (Tex. Crim. App. [ Panel Op.] 1983)).

Finally , the t estimony about t he 1994 arr est was al so admissible to rebut a defe nse theory

. See W

ork v. State , No. 0 3 -1 8 -0 0 2 44-CR, 2018 WL 2347013, at *8 (Tex. App.—Austin May 24, 2018, no pet. h.) (mem. op., not desig nated for publication) (“[C] ourts have explained that

6‘extraneous-of fense evidenc e, under Rule 404(b), is admissible to rebut a defe nsive theo ry raised in an opening statement or raised by the State’s wi tnesses during cross-e x amination.’”) (quoting Bargas v. State , 252 S.W .3d 876, 890 (Tex. App.—H o u s t o n [14t h Dist.] 2008, no pet.)). As discussed in more detail below, the defe nse’s theory at trial was that Tran assaulted J ennife r in selfdefe nse or mutual combat. The testimony of the 1994 arr est, acc ording to which an uninjured Tran had struck his wife such that she neede d to visit the emer g ency room, could sug g est to the jury that Tran w as the a g g ressor in the c ase be ing tr ied.

Tran arg ues that the testimony of the arr est was inadmiss i b l e beca use it was too

r e mo te

— th a t is , th e a ll e g e d a

r r e s t h a p p e n e d o v e r 2 0 y e a

r s b e f o r e tr ia l. H o w e v e r , Ru le 4 0 4 ( b ) c o n ta in s

no provision limit ing its applicability to evidenc e over a cer tain ag e. Cf. T ex . R

. E vid. 609(b) (provi d i n g cer

tain limit ations on admissibili ty of prior conviction “if more than 10 y ear s have passed since the witness’s conviction or rele ase from confine ment for it”). Moreove r, as our sister
court has explained, the probative value of a prior act “is not reduc ed to zero by the passag e of time and, unlike rule 403, rule 404(b) does not involve a weig hing of probative value.” Stulce , 2016 WL 4218594, at *5 (citing Newton v. State , 301 S.W .3d 315, 318 (Tex. App.—Waco 2009, pet. ref ’d))

. 1 That is espec ially true when, as here , the point of the evidenc e is to s h o w a long- standing rela tionship betwee n the defe ndant and the alleg ed victim. As discussed above, testimony that Tran

We also note that t he cases on remotene ss on which Tran relies wer e decided before the 1 adoption of the Texas Rules of Evidence , which favor the inclusion of evidenc e. See Stulce v. State , N o . 0 5

- 1 4

- 0 1 2 2 6

- CR , 2 0 1 6 WL 4 2 1 8 5 9 4 , a t * 5 ( T e x. A

p p . — D a ll a s A u g . 9 , 2 0 1 6 , n o p e t. ) ( me m. o p . , not desig nated for publ i ca t i on) (“A s the State points out, appellant’ s cited authorities preda te the ad o ption of the rules of evidenc e. The shift from common law authority to the rules of evidenc e in v o lv e d a s h if

t in s e n ti me n t f

r o m f a v o r in g e xc lu s io n o f e v id e n c e to f a v o r in g in c lu s io n o f e v id e n c e . ” )

. 7assaulted his wife m ore than 20 y ear s befor e trial is rele vant to the nature of their rela tionship, to

the question of whether Tran was the sole ag g ressor dur ing the assault, and to the question of why J ennife r did not appea

r during the g uilt-innocence phase of trial. There fore , we cannot conclude that the trial court abused its discretion in admitting th e t es t i m o n y d espite the leng th of time that had passed since the alleg ed arr est. See Perez v. State , No. 12-14-00116- CR, 2015 WL 3451556, at *6 (Tex. App.—Ty ler May 29, 2015, pet. ref’d) (mem. op., not desig nated f or publ ication) (“[T] here is no per s e rul e as to when an extraneous offe nse is too remote in time to be introduced in evidenc e . . . . The period of t ime separ ating the extraneous off ense f rom the primar

y offe nse is a fac tor to be considere d, along with all other rele vant fac tors.”); Corley v. State , 987 S.W .2d 615, 620 (Tex. App.—Austin 1999, no pet.) (“We note that there is no per se rule as to when an e x trane ous offe nse is too remote in time to be introduce d in evidence .”).

Be cause we conclude that the testimony about the 1994 arr est was rele vant evidenc e and admissible under Rule 404(b), we cannot conclude that its admission was an abuse of discretion, and we overr

ule Tra n’s first point of er

ror.

Ineff ect ive Assistance of Counsel I n his second point of err or, Tran contends that he rec eived ineffe ctive assistance of counsel. We apply the two-prong Strickland v. W ashington standard to Tran’ s claim. S e e S tr ic k la n d

v . W a s h in g to n , 466 U.S. 668, 687 (1984). T o p r e v a il u n d e r S tr ic k la n d , a n a p p e ll a n t must demonstrate by a prepondera

n ce of t he evidence both defic ient perf ormanc e by counsel and prejudice suffe red b y th e d e f e n d a n t. S e e id

. ; S ta te v . G u ti e r

r e z , 5 4 1 S. W. 3 d 9 1 , 9 8 ( T e x. Cr im

. A p p . 2 0 1 7 )

. I

n a d d it io n , as the Te x as Court of Criminal Appea ls has explained,

8Direc t appea l is usually an inadequa te vehicle for raising such a claim beca use the rec ord is g ener ally undevelope d. This is true with reg ard to the question of defic ient perf ormanc e—in which counsel’s conduct is revie wed with g rea t defe renc e, without th e d is to r t i n g e f f e c ts o f h in d s ig

h t— w h e r e c o u n s e l’ s r e a s o n s f

o r f a il in g to d o s o me th in g do n o t ap pear in the rec ord. We have said that trial counsel should ordinarily be aff orded an opportunity to explain his actions befor e being denounce d as ineffe ctive. Absent such an opportunity , an appellate court should not find defic ient perf ormanc e unless the challeng ed conduct was so outrag eous that no competent attorney would have e ng ag ed in it. Goodspee d v. State , 187 S.W .3d 390, 392 (Tex. Crim. App. 2005) (clea ned up). Her e, Tran complains that his trial counsel did not object o n h ea rs ay and Confrontation Claus e gro u n d s to testimony from the State’s witnesses about their conver sations with J ennife r. Tran arg ues that his counsel’s failure to object to this evidenc e “wa s espec ially cruc ial beca use of the complainant’s absenc e from the g uilt-innocence portion of the trial and the fac t that there wer e no ey ewitnesses to the a lleg ed assa ult.” Howeve r, it appea

rs from the r ecor d befor e us that Tran’ s counsel did have a consistent trial strateg y : attempting to convince the jury that althoug h Tran assaulted his wife, he did so in self-de fense or mutual combat. The re co rd i s reple te with instances in which counsel ar gu ed self-de fense or mutual combat or raised these issues throug h

cross-e x amination. For

example, in his opening a rg ument, Tran’ s counsel ar g ued as f ollows:

This case is a t h re e y ea r old case and y ou’ll hear from the fac ts of this particula r case , there was an arg ument betwee n the two people. They ’ve been marrie d 20 plus y ear s, people have arg

uments. I think the police will also testify that my client had scra tches on his neck, so it was a problem betwee n the two individuals and the police wer e ca lled.

Counsel did not sug g est that no phy sical encounte r took place —he instead arg ued that the encounte r was not an unjustified c riminal assault but rather mere ly a mutual marital “ problem.”

9To take another example, the following exchang e occur red on cr o ss-examination betwee n Tran’ s counsel and O ffice r Ritchie:
[Tran’s counsel:] And y ou also see on [Tran] there he has scra tches on him, so looks like it may

have be en mutual combat, is that possible? [Officer Ritchie:] That’s a lway s an option. [Tran’s counse l:] Okay . I f a pe rson was g etting attacke d, strang ulation would stop another attack w ouldn’t it? [Officer Ritchie:] Could. [Tran’s counse l:] I t could be used a s a self- defe nse tac tic? [Officer Ritchie:] I t could be used le thality [si c], y eah. [Tran’s counse l:] That g ets somebody off of y ou rea l quick won’t it? [Officer Ritchie:] Uh-huh. Ag ain, this exchang e reve als defe nse counsel’s trial strateg y : co n v i n ci n g the jury that Tran acte d in self-de fense

. This trial strateg y become s even clea rer when one rea liz es that Tran’ s counsel obtained a self-de fense jury instruction over the State’s objection. I n order to obtain a self-de fense jury instruction, a defe ndant must e ffe ctively admit to committ ing e ach e lement of the offe nse but then asser t that the condu ct wa s j ustified. See Juarez v. State , 308 S.W .3d 398, 401 (Tex. Crim. A p p . 2 0 1 0 ) ( d is c u s s in g “ th e lo n g - s ta n d in g le g a l d o c tr in e o f c o n f e s s io n a n d a v o id a n c e ” ) ; S h a w v . S ta te , 243 S.W .3d 647, 659 (Tex. Crim. App. 2007) (“[A] defe nsive instruction is only appropr iate when the defe ndant’s defe nsive evidenc e essentially admits to ever y element of the offe nse including the

10culpable mental state, but interposes the justification to excuse the ot herw ise criminal conduct.”);

Estrella v. State , Nos. 01-16-00938- CR & 01-17-0 0162-CR, 2018 WL 1056407, at *11 (Tex. App.—Houston [1st Dist.] Fe b. 27, 2018, no pet.) (“The doctrine require s a defe ndant to first admit that he eng ag ed in the proscr ibed conduct by admitting all elements of the underly ing offe nse, then claim that his commission of the offe nse is justified beca use of other fac ts.”); Stanley v. State , No. 02-16-00176- C R , 2 0 1 8 WL 359903, at *9 (Tex. App.—For t Worth J an. 11, 2018, no pet.) (mem. op., not desig nated for publication) (“[T]o be entitled to a self-de fens e instruction, the defe ndant must admit ever y element of the offe nse, including the culpable mental state.”) ; Penning

v. State , No. 03-14-00579- CR, 2016 WL 4628052, at *3 (Tex. App.—Austin Aug

. 31, 2016, no pet.) (mem. op., not desig nated for publication ) (“Justi fica tion defe nses, including nece ssity and selfd e f e n s e , a r e b a s e d o n th e c o n f

e s s io n - a n d

- a v o id a n c e d o c tr in e , w h ic h r e q

u ir e s a d e f e n d a n t to a d mi t th e conduct—both the act or omission and the requisite culpable mental state—of the c h a r g e d o f f e n s e .”). Be cause Tran’ s appar ent strateg y was to pursue, and ultimately obtain, a self-de fense instr u ction, which require d Tran to admit to the elements of the offe nse, it would have been inconsistent with this strateg y for Tran to o b j ec t t o t h e evidenc e of the assault about which Tran complains on appea l. Moreove r, in the absenc e of a more develope d rec ord, we cannot conclude that the self-de fense strateg y that Tran’ s counsel pursued was “so outrag eous that no competent attorney would have eng ag ed in it.” See Goodspee d , 187 S.W .3d at 3 9 2 (c l eane d up). Tran’ s counsel consistently pursued a rea sonable trial strateg y ; there fore , we cannot conclude that counsel rende red defic ient perf

ormanc e or that Tran rec eived ineffe ctive assistance

. Acc ording ly , we overr ule Tran’ s second point of e rror .

11CONCLUSION Ha ving overr

uled Tran’ s points of err or, we aff irm the trial court’s judgme nt of conviction.

__________________________________________ Scott K. Field, Just ice Be fore Chief J ustice Rose, Jus tices Goodwin a nd Field Affir med Filed: June 26, 2018 Do Not Publish

12