Opinion
NO. PD-0287-20
02-09-2022
Happy Tran PHAM, Appellant v. The STATE of Texas
Clinton Morgan, Houston, for State. Brittany Lacayo, Houston, for Appellant.
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. We limit our discussion of its opinion to the claims before us on discretionary review.
Pham v. State , 595 S.W.3d 769, 789 (Tex. App.—Houston [14th Dist.] 2019).
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. The court extensively discussed our prior case of Gamino v. State , which construed the statute. 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. The court concluded that Section 9.04 applies only when "deadly force" was not used, and that it did not apply in Appellant's case because he used deadly force rather than merely threatening deadly force.
See id. at 778 (quoting the statute).
537 S.W.3d 507 (Tex. Crim. App. 2017).
Pham , 595 S.W.3d at 778-79.
Id. at 778.
Id.
Id. at 779.
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. 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. 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." 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."
Id. at 782.
Id.
Id. The court of appeals concluded that the trial court essentially stated this conclusion in its oral findings. Id. That is perhaps an overstatement, but the trial court did say that "some family members had assisted the defendant in fleeing" and so calling them would be "risky" and that the witnesses’ testimony "would have been of limited value just because they hadn't seen him in 10 years." The trial court noted that Appellant had been underground for 10 years and had no social security card and no driver's license and that there was no record of him anywhere until he was caught with marijuana.
Id. at 782-83.
The court of appeals also concluded that Appellant failed to establish prejudice. 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." The court further explained that this showing was more than simply showing that the attorney's errors "had some conceivable effect on the outcome of the punishment assessed." In its earlier recitation of Appellant's proffered mitigating evidence, the court of appeals had observed that none of the affidavits reflected that any of the individuals identified as potential punishment-stage witnesses, except for Appellant's girlfriend, had any contact with Appellant in the ten years since the victim's death. Referring to its discussion under the deficient performance prong, the court of appeals stated that the evidence that would have mitigated Appellant's punishment "came from either witnesses that had not had any contact with appellant in ten years, had assisted appellant in leaving the state after the shooting, or were aware of his drug-dealing activities." "In light of the testimony and video evidence, which convinced the jury that appellant did not act in self-defense," the court of appeals determined that it could not conclude that there was a reasonable probability that the jury would have reached a more favorable verdict but for the attorney's alleged errors.
Id. at 783.
Id.
Id.
Id. at 782.
Id. at 783
Id.
II. ANALYSIS
A. Instruction on Threat of Deadly Force
Penal Code section 9.04 provides:
For purposes of this section, a threat to cause death or serious bodily injury by the production of a weapon or otherwise, as long as the actor's purpose is limited to creating an apprehension that he will use deadly force if necessary, does not constitute the use of deadly force.
In Gamino , we explained that this statute does not provide a separate defense but allows a defendant who meets its terms to satisfy the self-defense requirements under Penal Code section 9.31, relating to non-deadly force used in self-defense, rather than having to satisfy the onerous self-defense requirements under Penal Code section 9.32, relating to deadly force used in self-defense. Put succinctly, if Appellant's threat of deadly force complied with Section 9.04, then it constituted the use of non-deadly force rather than the use of deadly force, and the use of non-deadly force is easier to justify than the use of deadly force. Section 9.04 comes with an express limitation. It applies only when "the actor's purpose is limited to creating an apprehension that he will use deadly force if necessary." Here, Appellant's purpose was not so limited because he actually shot Mai and intended to do so. Appellant did not merely intend to create an apprehension in Mai that Appellant would shoot him if necessary. If Appellant harbored that purpose at one time, he went beyond it when he shot Mai with the purpose of injuring him—an actual use of deadly force rather than the creation of a mere apprehension of the use of deadly force. Under those circumstances, Appellant was not entitled to an instruction under Section 9.04.
We need not and do not address whether something short of the facts before us would take a defendant's case outside the ambit of § 9.04. We need not decide, for example, whether merely firing a gun would be sufficient to constitute more than the creation of the apprehension that deadly force would be used if necessary. By his own admission, Appellant fired the gun intending to hit Mai, and the evidence is undisputed that Mai was actually shot. Whether lesser scenarios would fall outside the ambit of § 9.04 is a question for another day.
B. Failure to Present Mitigating Witnesses
For a defendant to prevail on an ineffective assistance claim, the record must show deficient performance by counsel and prejudice. Assuming for the sake of discussion that counsel performed deficiently, we conclude that prejudice has not been shown.
Ex parte Garza , 620 S.W.3d 801, 808 (Tex. Crim. App. 2021) (citing Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ).
The court of appeals accurately recited the standard for showing prejudice from punishment-stage errors: "a reasonable probability that, but for counsel's errors, the sentencing jury would have reached a more favorable verdict." And that court was correct to also say that it was not enough to show the punishment-stage errors "had some conceivable effect on the outcome of the punishment assessed." Further, we conclude that the court of appeals accurately assessed the dilemma that trial counsel faced with respect to punishment mitigating witnesses. If a witness had not had contact with Appellant during the ten years in which he was a fugitive, then that witness's testimony was likely to be viewed by a jury as stale and uninformed. If a witness did have contact with Appellant while he was a fugitive for ten years, then a jury was likely to view that witness as a bad judge of character. And the latter type of witness would give damaging testimony during cross-examination because the witness would at least know about Appellant's fugitive status and would likely also know about other bad acts committed by Appellant while on the run from the law. Moreover, witnesses who had assisted Appellant's initial flight but had not had contact with Appellant since then could pose the worst of both worlds: possessing only stale information about Appellant and being viewed as unreliable judges of character (and possibly knowing about other bad acts committed by Appellant). Even if counsel should have investigated these witnesses to see if they had information or could testify in a way that would overcome this dilemma, Appellant has not shown that to be true of any of his proffered witnesses. We affirm the judgment of the court of appeals.
Ex parte Rogers , 369 S.W.3d 858, 863 (Tex. Crim. App. 2012).
See id.
All of the proffered witnesses except the girlfriend would appear to fall within the "no contact for ten years" category, leading to the conclusion that any character information they had about Appellant was stale.
Yeary, J., filed a concurring opinion.
Slaughter, J., filed a concurring opinion in which Richardson and Walker, JJ., joined.
CONCURRING OPINION
Yeary, J., filed a concurring opinion.
Despite his claim of self-defense, Appellant was convicted of murder and his punishment was assessed by a jury at life in the penitentiary. His conviction was affirmed on appeal. Pham v. State , 595 S.W.3d 769 (Tex. App.—Houston [14th Dist.] 2019). We granted Appellant's petition for discretionary review to address two issues. First, was the court of appeals correct to decide that the trial court did not err by refusing Appellant's guilt-phase request for a jury instruction on "threat of force" under Section 9.04 of the Texas Penal Code ? TEX. PENAL CODE § 9.04. Second, should the court of appeals have sustained Appellant's complaint that his trial counsel rendered constitutionally ineffective assistance by failing to investigate the availability of mitigating evidence for the punishment phase of trial? Answering both questions "no," the Court affirms the court of appeals’ judgment. I join the Court's disposition and opinion as to both issues, and I write separately only to supplement its rationale and to say that, while the Court's opinion limits its review of Appellant's constitutional effectiveness of counsel claim to the prejudice prong of that analysis, I also agree with the Court of Appeals’ conclusion that trial counsel has not been shown to have performed deficiently in this case.
SECTION 9.04 INSTRUCTION
Threat of Deadly Force versus Use of Deadly Force
Section 9.04 renders the mere threat to cause death or serious bodily injury by the production of a weapon "not to constitute the use of deadly force," so long as the actor's purpose is limited to creating the apprehension that he will only carry out the threat "if necessary[.]" And since the threat to use a weapon does not constitute deadly force under Section 9.04, it may lawfully be used to counter the use of unlawful non-deadly force against the actor. In contrast, Appellant's case does not involve only a threat to use a weapon to cause serious bodily injury or death. To counter whatever level of threat he perceived Mai to be posing to him, Appellant eventually used his weapon to actually cause serious bodily injury and death. He was charged, accordingly, with murder, not assault by threat with a deadly weapon. Neither party requested a lesser-included instruction on aggravated assault, and no such lesser included offense instruction was submitted. Appellant therefore cannot rely upon a statutory provision that justifies production of a weapon in a threat of force (even the threat of serious bodily injury or death), when the evidence shows without contradiction that he, in fact, used deadly force to cause serious bodily injury or death.
Section 9.04 reads, in its entirety:
The threat of force is justified when the use of force is justified by this chapter. For purposes of this section, a threat to cause death or serious bodily injury by the production of a weapon or otherwise, as long as the actor's purpose is limited to creating an apprehension that he will use deadly force if necessary, does not constitute the use of deadly force.
Tex. Penal Code § 9.04.
That Section 9.04 should be read to apply only to justify threats of force (or deadly force) and not the actual use of force (or deadly force) is reinforced by its historical pedigree. Section 9.04 is a carryover from the 1925 Penal Code. See Section 9.04, V.A.P.C., Practice Commentary, at 251 (West 1974) ("The second sentence [of Section 9.04 ] appears aimed at preserving the principle of [former] Penal Code art. 1267. That [former] article excepted from the offense of deadly threat (art. 1265) threats made in self-defense."). Former Article 1265 in the 1925 Penal Code had made it an offense to "seriously threaten to take the life of any human being or to inflict upon any human being any serious bodily injury[.]" V.A.P.C. Article 1265, at 805 (West 1961) (emphasis added).
Provoking the Difficulty
Appellant also argues, however, that by failing to submit his requested Section 9.04 instruction to the jury, the trial court somehow hampered his ability to respond to the prosecutor's jury argument that it should reject Appellant's claim of self-defense on the ground that Appellant had provoked the difficulty. The Court does not address this particular argument, though I think it merits a response.
Without further elaboration, Appellant argues:
The omitted jury instruction deprived [Appellant of] the ability to argue that the display of his gun was justified under the law. On the other hand, the State was allowed to exploit the error by arguing that [Appellant's] lawful act of displaying his gun provoked the difficulty with the complainant and therefore argued for the jury to find against him on the issue [of] self-defense.
Appellant's Brief at 41.
The jury was indeed instructed on provoking the difficulty. It was told that, should it find that Appellant acted first in the encounter, in such a way as to provoke Mai into using or appearing to use deadly force against him, and with the specific intent to create a pretext to kill Mai, then it must reject Appellant's self-defense claim. Appellant does not explain how the trial court's failure to instruct the jury on the terms of Section 9.04 unfairly facilitated the State's reliance on the provoking-the-difficulty doctrine, and I cannot conceive of how it did.
In Smith v. State , 965 S.W.2d 509, 513 (Tex. Crim. App. 1998), the Court explained:
A charge on provocation is required when there is sufficient evidence (1) that the defendant did some act or used some words which provoked the attack, (2) that such act or words were reasonably calculated to provoke the attack, and (3) that the act was done or the words were used for the purpose and with the intent that the defendant would have a pretext for inflicting harm on the other.
With respect to provoking the difficulty, the trial court instructed the jury:
You are further instructed as part of the law of this case, and as a qualification of the law on self-defense, that the use of force by a defendant against another is not justified if the defendant provoked the other's use or attempted use of unlawful force, unless:
(a) the defendant abandons the encounter, or clearly communicates to the other his intent to do so reasonably believing he cannot safely abandon the encounter; and
(b) the other person, nevertheless, continues or attempts to use unlawful force against the defendant.
So, in this case, if you find and believe from the evidence beyond a reasonable doubt that the defendant, Happy Tran Pham, immediately before the difficulty, then and there did some act, or used some language, or did both, as the case may be, with the intent on his, the defendant's, part, to produce the occasion for shooting Pierre Mai, and to bring on the difficulty with the said Pierre Mai, and that such words and conduct on the defendant's part, if there was such, were reasonably calculated to, and did, provoke a difficulty, and that on such account Pierre Mai attacked the defendant with deadly force, or reasonably appeared to the defendant to so attack him or to be attempting to so attack him, and that the defendant then shot Pierre Mai with a firearm, in pursuance of his original design, if you find there was such, then you will find against the defendant on the issue of self-defense.
On the other hand, if you find from the evidence that the acts done or language used by the defendant, if any, were not, under the circumstances, reasonably calculated or intended to provoke a difficulty or an attack by Pierre Mai upon the defendant, or if you have a reasonable doubt thereof, then in such event, the defendant's right of self-defense would in no way be abridged, impaired, or lessened, and, if you so find, or if you have a reasonable doubt thereof, you will decide the issue of self-defense in accordance with the law on that subject given in other portions of this charge, wholly disregarding and without reference to the law on the subject of provoking the difficulty.
Under the doctrine of provoking the difficulty, the defendant "forfeits his right of self-defense" if he provokes his victim into attacking him so that he might have a pretext for killing him. Smith v. State , 965 S.W.2d 509, 512 (Tex. Crim. App. 1998). In the context of a homicide prosecution, the doctrine only applies when the defendant is "the first aggressor" in the encounter that resulted in the killing. See id. at 519 (analyzing the evidence in a manslaughter case to determine whether it was sufficient to show that the appellant was "the first aggressor" for purposes of supporting submission of a charge on provoking the difficulty).
Here, if the jury were to believe that Appellant acted first in the encounter, then it could not possibly find that Section 9.04 has any application. This is because, under the terms of Section 9.04, a defendant's "production of a weapon" to create the "apprehension that he will use deadly force if necessary" is justified only by the fact that it is meant to ward off the other person's initial threat of unlawful force. If the jury were to believe that Appellant acted first , in the absence of such a threat, his own display of a weapon could not possibly serve that function. Section 9.04 would simply have no application.
If, on the other hand, the jury in this case chose to believe Appellant's version of events—that he was reacting to Mai, not the other way around—it might readily have been persuaded that Mai was the "first aggressor" in the encounter, rather than Appellant. Appellant did not require a Section 9.04 instruction to make that argument in rebuttal to the prosecutor's reliance on provoking the difficulty. For these reasons, I reject Appellant's claim that the lack of a Section 9.04 instruction adversely affected his ability to respond to the prosecutor's provoking-the-difficulty argument.
FAILURE TO INVESTIGATE MITIGATION AT PUNISHMENT
I also agree with the Court's disposition of Appellant's second ground for review as well. And, while the Court's opinion does not speak to the issue at all, I agree with the court of appeals’ conclusion that trial counsel made a sufficiently well-informed decision not to present testimony from mitigation witnesses who would be subject to potentially neutralizing cross-examination regarding Appellant's activities in the ten years preceding trial. Pham , 595 S.W.3d at 782. It was not unreasonable for him to conclude that a jury would regard the testimony of any character witness who had no recent knowledge of Appellant's whereabouts and activity to have been detrimentally stale. It was also not unreasonable for him to conclude that any character witnesses who did claim to have more recent information pertaining to Appellant's character would either have had to admit to an awareness of his unlawful activities—which would have undercut any positive assessment of his character—or admit to having no such awareness—which would have made their opinions of his positive character seem uninformed, disingenuous, or naive. The court of appeals correctly concluded that trial counsel's failure to investigate evidence of Appellant's positive character traits did not constitute constitutionally deficient performance under Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
I do believe it important to address, however, something that the court of appeals observed that deserves comment. The court of appeals reasoned:
As trial counsel averred, his trial strategy was to establish that appellant acted in self-defense. Prioritizing 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.
Pham , 595 S.W.3d at 782–83. The Court would not need to endorse this aspect of the court of appeals’ reasoning before affirming its judgment, and I do not.
On the contrary, trial counsel is constitutionally obliged to provide effective assistance of counsel at both the guilt and punishment phases of trial. Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ; Hernandez v. State , 988 S.W.2d 770 (Tex. Crim. App. 1999). Any genuine deficiency in his investigation of, and preparation for, the punishment phase of trial could not be excused merely because he was confident that his guilt-phase strategy, if vigorously pursued, would prove successful—even if that confidence were well-founded. Nor may trial counsel appropriately regard any residual doubt that may still linger during the punishment phase as a sufficient presentation of mitigating evidence, at least without further investigation into available mitigating evidence, or else a reasonable basis to determine that such further investigation is unnecessary. Cf. Franklin v. Lynaugh , 487 U.S. 164, 172–74, 108 S.Ct. 2320, 101 L.Ed.2d 155 (1988) ("Our edict that, in a capital case, ‘the sentencer ... [may] not be precluded from considering, as a mitigating factor , any aspect of a defendant's character or record and any of the circumstances of the offense,’ ... in no way mandates reconsideration by capital juries, in the sentencing phase, of their ‘residual doubts’ over a defendant's guilt."). Trial counsel's belief that his client will be acquitted, by itself , does not provide a reasonable basis to determine that a punishment-phase investigation is unnecessary. To suggest otherwise was a mistake.
With these supplemental comments, I join the Court's opinion.
CONCURRING OPINION
Slaughter, J., filed a concurring opinion in which Richardson and Walker, JJ., joined.
While I agree that Appellant's conviction should be upheld based on harmless error, I would hold that Appellant was entitled to receive the Section 9.04 instruction to clarify for the jury the issue of provocation. Therefore, I write separately to address this issue.
Under Penal Code Section 9.04, a threat to use force against another is justifiable in the same manner as the use of force. See TEX. PENAL CODE § 9.04 ("The threat of force is justified when the use of force is justified" under Chapter 9). A person is justified in displaying a weapon for the purpose of discouraging a deadly assault if he reasonably believes that such action is immediately necessary to protect himself against the other person's use or attempted use of unlawful force, and if his purpose in producing the weapon is "limited to creating an apprehension that he will use deadly force if necessary." Id. §§ 9.04, 9.31.
In this case, Appellant claimed that he pulled out his gun for this exact purpose—to dissuade the decedent from continuing to reach for his weapon—but that when such threat did not successfully dissuade the decedent from reaching for his weapon, he shot the decedent. Today the majority holds that these facts do not entitle Appellant to a jury instruction under Section 9.04 because he actually used deadly force, rather than merely threatening deadly force. I respectfully disagree. Because the jury was also instructed on the law of provocation here, an instruction under Section 9.04 was needed to inform the jury that Appellant's conduct in pulling out his weapon did not necessarily make him the first aggressor and may be justifiable as self-defense. Given these circumstances, I would hold that Appellant was entitled to the Section 9.04 instruction so that the jury would be fully apprised of Appellant's right to display a weapon if he reasonably believed that such display was immediately necessary to protect himself. I would, therefore, hold that the instructions were erroneous in this regard. But because such error was harmless in light of the other trial evidence, I would uphold the court of appeals’ judgment affirming the conviction.
I. Background
Appellant and Pierre Mai had a contentious history. Several months before the shooting, the conflict between Appellant and Mai became physical. Mai approached Appellant in public, "started swinging at [him]," and police had to intervene. Appellant testified that after this fight, he agreed not to escalate the situation any further. But according to Appellant, Mai's friends furthered the feud a few months later at a Halloween party. Mai's friend "bumped" into Appellant and a fight broke out between Mai's and Appellant's friends. When the fight was seemingly over, Appellant was struck in the face with a beer bottle. Appellant also testified that he heard Mai was involved in a drive-by shooting, which made him realize that the situation could become deadly.
On the day of the shooting, Appellant had plans to go to dinner at a restaurant with a group of friends and family. On his way to the dinner, he learned that Mai was also at the restaurant. Appellant testified that he "was over the situation" so he decided to go to the restaurant anyway. He walked into the restaurant and out of the corner of his eye, he saw Mai jump up. Knowing Mai to carry a weapon with him, Appellant believed Mai was about to reach for his gun. Appellant drew his weapon. He testified he did so as a warning to Mai in an effort to prevent Mai's use of deadly force against him. Appellant further testified that despite this attempt, he observed Mai continue to reach for his own weapon and begin to point it at Appellant. Appellant then shot Mai.
The trial court granted Appellant's request for a jury instruction on self-defense. The instructions provided a summary of the law of self-defense under Penal Code Sections 9.31 and 9.32 (governing the use of deadly force). The instructions also included a provocation instruction, providing that a defendant's use of force is not justified if he provoked the other person's use or attempted use of unlawful force, unless (1) "the defendant abandon[ed] the encounter, or clearly communicated his intent to do so reasonably believing he cannot safely abandon the encounter," and (2) "the other person nevertheless continue[d] or attempt[ed] to use unlawful force against the defendant." The application paragraph of the charge defined provocation as doing "some act, or us[ing] some language, or [ ] both, as the case may be, with the intent on his, the defendant's part, to produce the occasion for shooting Pierre Mai, and to bring on the difficulty with the said Pierre Mai, and that such words and conduct on the defendant's part, if there was such, were reasonably calculated to, and did, provoke a difficulty[.]"
Appellant also requested an instruction under Penal Code Section 9.04, governing threats to use force. In support of his request for the Section 9.04 instruction, Appellant argued that inclusion of this additional charge would "give[ ] the jury an understanding of at what point ... to apply the secondary deadly force charge ...." In other words, the jury would be able to consider, as two distinct inquiries, whether Appellant was justified in drawing his weapon initially for the purpose of deterring Mai from reaching for his weapon, and whether Appellant was further justified in using his weapon when Mai was ultimately undeterred. The trial court rejected the request for the Section 9.04 instruction because it did not "really think that § 9.04 applie[d]" to the case. The appellate court summarily agreed with the trial court. It concluded that Appellant was not entitled to the instruction because he actually used deadly force, rather than only the threat of deadly force. Pham v. State , 595 S.W.3d 769, 779 (Tex. App.—Houston [14th Dist.] 2019).
II. Analysis
A defendant is entitled to an instruction on self-defense if the issue is raised by the evidence, regardless of whether that evidence is strong or weak, unimpeached or contradicted, and regardless of what the trial court may think about the credibility of the defense. Ferrel v. State , 55 S.W.3d 586, 591 (Tex. Crim. App. 2001). On appeal, in determining whether a defendant was entitled to an instruction on self-defense, we must view the evidence in the light most favorable to Appellant's requested submission. Bufkin v. State , 207 S.W.3d 779, 782 (Tex. Crim. App. 2006).
Texas Penal Code Section 9.04 is a part of the law of self-defense. Gamino v. State , 537 S.W.3d 507, 510 (Tex. Crim. App. 2017). That provision states:
The threat of force is justified when the use of force is justified by this chapter. For purposes of this section, a threat to cause death or serious bodily injury by the production of a weapon or otherwise, as long as the actor's purpose is limited to creating an apprehension that he will use deadly force if necessary, does not constitute the use of deadly force.
"Use of force" is justified "when and to the degree the actor reasonably believes the force is immediately necessary to protect the actor against the other's use or attempted use of unlawful force." TEX. PENAL CODE § 9.31(a). But "use of force" is not justified "if the actor provoked the other's use or attempted use of unlawful force[.]" Id. § 9.31(b)(4). However, if the actor did provoke the other's use or attempted use of unlawful force, but he "abandons the encounter, or clearly communicates to the other his intent to do so reasonably believing he cannot safely abandon the encounter; and the other nevertheless continues or attempts to use unlawful force against the actor," then the actor may still be justified in his use of force. Id. § 9.31(b)(4)(A), (B).
Under the facts of this case, key to the jury's consideration of whether Appellant was justified in shooting Mai under the law of self-defense was whether Appellant provoked the situation with Mai. The State argued in closing that by the very fact that Appellant pulled out his handgun, he provoked the situation and therefore had no justification in shooting Mai. In addition, the jury charge included a non-statutory definition and instruction on provocation. Such information greatly increased the possibility that the jury would presume that Appellant's action in pulling a weapon first was per se provocation foreclosing a self-defense finding regardless of what they believed about the remaining evidence. Had the jury been instructed under Section 9.04 that the initial production of a weapon can be justified if the statutory requirements are met, then the jury could have more properly considered whether Appellant provoked the encounter with Mai. With such instruction, the jury could have considered whether Appellant was justified in drawing his weapon as a mere threat because his "purpose [was] limited to creating an apprehension that he will use deadly force if necessary[.]" TEX. PEN. CODE § 9.04. Then, if the jury found such justification and that the mere fact of drawing a weapon was not per se provocation, it could have gone on to consider whether Appellant was also justified in shooting Mai because his threat failed to deter Mai, and Appellant reasonably believed that Mai continued to reach for a weapon. Accordingly, based on Appellant's testimony at trial, he raised sufficient evidence to justify submission of both a Section 9.04 and 9.31/9.32 instructions. The trial court erred in refusing the instruction under Section 9.04 and the court of appeals erred in upholding such refusal.
Nevertheless, I agree with the Court's ultimate conclusion that the denial of the instruction does not warrant reversal of Appellant's conviction because such error was not harmful under these particular circumstances. An error in the charge on self-defense is charge error subject to a harm analysis pursuant to Almanza v. State , 686 S.W.2d 157 (Tex. Crim. App. 1985) (op. on reh'g). See Jordan v. State, 593 S.W.3d 340, 345-47 (Tex. Crim. App. 2020) (finding error in the charge on self-defense based on denial of multiple assailants instruction and examining such error for "some harm" under Almanza ). If error was preserved through a timely request for the instruction, then reversal is warranted only if the denial of the requested instruction resulted in "some harm," which means actual harm rather than a theoretical complaint. Id. at 347. "[T]he actual degree of harm must be assayed 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 of the trial as a whole." Almanza , 686 S.W.2d at 171.
As discussed above, the State's arguments in closing and the inclusion of the provocation charge in the jury instructions arguably support a finding of some harm. However, to establish actual harm as opposed to theoretical harm, the evidence would need to present some plausible basis upon which the jury might have concluded that Appellant was justified in pulling his weapon initially as a threat with the sole purpose of de-escalating a potentially deadly conflict, and then was further justified in ultimately using deadly force against Mai. In light of the totality of the evidence, no such plausible basis exists here. Witnesses testified that Appellant entered the restaurant and immediately approached Mai with his gun at his side saying, "Motherf**ker, you in my hood," "What the f**k you doing in my motherf**king hood?" or "Bitch, you're in my hood." Witnesses also testified that Mai never pulled a gun. Appellant shot Mai twice—once as Mai fell to the ground. Appellant then immediately fled the scene and disappeared for more than nine years. Considering the totality of the evidence, there is no realistic possibility that the jury would have found that Appellant was justified in both his initial threat of force and his ultimate use of deadly force, even if it had received the Section 9.04 instruction. Thus, although I believe it was error to deny the instruction, the record shows nothing more than theoretical harm under the facts of this case, such that reversal is not warranted.
III. Conclusion
Appellant testified that he drew his weapon to discourage a deadly conflict. Such was his right if he reasonably believed that threatening the use of force was immediately necessary to prevent Mai's use of force against him. The Court wrongly holds that Appellant was not entitled to a jury instruction informing the jury of this right. In doing so, we signal that Section 9.04 protects only empty threats. The right to draw a weapon as a threat in self-defense and the right to use a weapon in self-defense are separate inquiries—each protected under Texas law. I, therefore, disagree with the Court and would hold that Appellant was entitled to the Section 9.04 instruction. But because the refusal of the Section 9.04 instruction was not harmful in this case, I respectfully concur in the Court's judgment but do not join its opinion.