Searn Moun, A/K/A Kim Loren, A/K/A Moa Soeun, A/K/A Moun Sen, A/K/A Chan Knip v. State

Opinion issued February 7, 2008 In The Court of Appeals For The First District of Texas NO. 01-06-00790-CR SEARN MOUN, A/K/A KIM LOREN, A/K/A MOA SOEUN, A/K/A MOUN SEN, A/K/A CHAN KNIP, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 23rd District Court Brazoria County, Texas Trial Court Cause No. 48,661 MEMORANDUM OPINION Appellant, Searn Moun, a/k/a Kim Loren, a/k/a Moa Soeun, a/k/a Moun Sen, a/k/a Chan Knip, was charged by indictment with aggravated assault with a deadly weapon, namely, a knife. See Tex. Pen. Code Ann. § 22.02(a)(2) (Vernon Supp. 2007). Appellant pleaded not guilty. A jury found appellant guilty, but was unable to agree on punishment and a mistrial was declared regarding punishment. A second jury assessed punishment at 15 years' confinement and a fine of $5,000. In two issues, appellant contends that the trial court erred (1) by refusing to instruct the jury on self-defense and (2) by denying her motion for new trial because the evidence shows that "the interpreter at trial [was] incompetent in translating the proceedings." We affirm. Background Appellant and the complainant, Sophear Som, were friends who shared an apartment and worked together at the Seafood Hut restaurant in Clute, Texas. Som owned the Seafood Hut, and appellant worked as a cook. Som and appellant frequently argued over financial matters. When Som arrived to open the restaurant on the morning of July 5, 2004, she discovered that the refrigerator had been unplugged and that the food inside was spoiled. Som went back home and instructed appellant to come and help clean out the refrigerator. According to Som, appellant was angry when she was asked to help clean out the refrigerator. While they were cleaning, Som threatened to fire appellant. Afterwards, while Som was replenishing oil in the deep fryer, appellant stabbed Som in the back of the head. Som turned around and saw appellant holding a white butcher knife. Appellant continued to come at Som with the knife and the fight moved outside. Appellant repeatedly stabbed Som in the arm and throat. According to Som, appellant said, "Today, I going [sic] to kill you." Som also stated that appellant bit her several times and kicked her in the chest, saying, "Die, die, die." When Som struggled to get to her feet, appellant continued to stab her with the knife. Eventually, Som was able to get up and run to a neighboring business for help. Appellant chased her part of the way, then stopped. Som was taken to the hospital by Life Flight. According to appellant, who is Cambodian and testified through an interpreter at trial, Som was angry while they cleaned out the refrigerator and Som pushed appellant into a table, which caused appellant to bleed from the mouth and to briefly lose consciousness. Appellant asserts that she felt a knife, grabbed it, and swung back. Appellant testified as follows, in pertinent part: "It's an accident that I get [sic] my hand on the knife. I don't know anything. I get it. I just try to grab and swing back." Appellant asserted that she swung back "to defend [her]self," but maintained that it was "just the accident that I swing [sic]." Appellant testified that she feared that Som was trying to kill her because Som had, during an argument over a boyfriend two weeks prior, threatened to kill appellant with a hammer. Som did not have a hammer or any other weapon at the time of the incident at issue. Appellant testified that she did not intentionally stab Som; rather, Som was repeatedly jumping on appellant and was cut by the knife as Som tried to take it from appellant. Appellant feared that if Som got the knife, Som would kill her. Appellant further testified that the fight moved from the kitchen to outside the restaurant, where she and Som both fell to the ground. Appellant testified that she got to her feet, but that Som could not get up because Som's hair became entangled in wiring on the air conditioner. Appellant testified that, while Som was lying on the ground with her hair caught in the wiring, Som hit appellant in the knee with a palm-sized rock. Appellant testified that she did not bite Som's arms; rather, she removed a hair clip from Som's head and used it to pinch Som's arms. Appellant testified that she then cut Som's hair free from the air conditioner and then ran to a nearby gas station to escape. According to Som's medical report, which was read into evidence, Som suffered multiple stab wounds to her neck, hands, and scalp. Som testified that she was stabbed a total of 32 times. Detective J. Barnard of the Clute Police Department testified that appellant's injuries were confined to her mouth. The jury was instructed that it could find appellant guilty of aggravated assault or the lesser-included offense of deadly conduct. Appellant had requested that the jury also be instructed on the law of self-defense, which the trial court denied. Instruction on Self-defense In her first issue, appellant contends that the trial court erred by refusing to instruct the jury on the law of self-defense. At the end of trial, appellant requested both an instruction on the lesser-included offense of deadly conduct and an instruction on self-defense. The trial court instructed appellant that the law would not allow her to have both instructions and that she would have to choose one. Appellant chose the instruction on deadly conduct. On appeal, appellant contends that the trial court erred by concluding that the instructions are incompatible and by denying her requested instruction on the law of self-defense. We review alleged charge error by first determining whether error existed in the charge and, if so, analyzing whether sufficient harm resulted from the error to warrant reversal. Middleton v. State, 125 S.W.3d 450, 453 (Tex. Crim. App. 2003). When evidence from any source raises a defensive issue and the defendant properly requests a jury charge on that issue, the trial court must submit the issue to the jury. Mendoza v. State, 88 S.W.3d 236, 239 (Tex. Crim. App. 2002). A defendant is entitled to an instruction on any defensive issue raised by the evidence regardless of whether the evidence is weak or strong, unimpeached or contradicted, and regardless of what the trial court may think about the credibility of the defense. See Hamel v. State, 916 S.W.2d 491, 493 (Tex. Crim. App. 1996). Here, appellant was entitled to an instruction on every theory raised, even if the evidence was inconsistent or supported more than one defensive theory, or the defenses themselves were inconsistent or contradictory. See Johnson v. State, 715 S.W.2d 402, 406-07 (Tex. App.--Houston [1st Dist.] 1986, pet. ref'd) (citing Booth v. State, 679 S.W.2d 498, 500-01 (Tex. Crim. App. 1984)). A defendant bears the burden to produce some evidence to support her self-defense claim. See Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003). If the evidence, which is viewed in the light most favorable to the defendant, does not establish self-defense, then the defendant is not entitled to an instruction on the issue. Ferrel v. State, 55 S.W.3d 586, 591 (Tex. Crim. App. 2001); Guilbeau v. State, 193 S.W.3d 156, 159 (Tex. App.--Houston [1st Dist.] 2006, pet. ref'd). Here, appellant was charged with having assaulted Som by intentionally, knowingly, or recklessly causing her bodily injury by stabbing her with a deadly weapon, namely, a knife, which in the manner of its use or intended use was capable of causing death or serious bodily injury. Appellant contends that the catalyst for the stabbing was that Som pushed her from behind and appellant fell onto the corner of a table, which caused her to lose a tooth and caused her to briefly black out. Appellant asserts that she felt a knife nearby, grabbed it, and swung back. Appellant testified as follows, in pertinent part: "It's an accident that I get [sic] my hand on the knife. I don't know anything. I get it. I just try to grab and swing back." Appellant asserted that she swung back "to defend [her]self," but maintained that it was "just the accident that I swing [sic]." Appellant testified that she feared that Som was trying to kill her because Som had, during an argument over a boyfriend two weeks prior, threatened to kill appellant with a hammer. It is undisputed that Som did not have a hammer or any other weapon at the time of the incident at issue. Appellant testified that she did not intentionally stab Som; rather, Som was repeatedly jumping on appellant and was cut by the knife as Som tried to take it from appellant. Som testified that she was stabbed a total of 32 times. Som's medical report showed that Som suffered multiple stab wounds to her neck, hands, and scalp--a large scalp avulsion caused by multiple small stabs and "deep" stab wounds in neck. The record shows that appellant made a written request "that the charge of the Court to the jury include an instruction on the application of self-defense (section 9.31, Penal Code)." The version of subsection 9.31(a) that applies to this case provides in pertinent part as follows: (a) Except as provided in subsection (b), a person is justified in using force against another when and to the degree he reasonably believes the force is immediately necessary to protect himself against the other's use or attempted use of unlawful force. (1) Subsection (b) provides, in pertinent part, that the use of force against another is not justified in response to verbal provocation alone or if the actor provoked the other's use or attempted use of unlawful force, unless the actor 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. (2) Here, because appellant used deadly force, there must be some evidence to satisfy the requisites of Penal Code section 9.32. See Dyson v. State, 672 S.W.2d 460, 463 (Tex. Crim. App. 1984); Guilbeau, 193 S.W.3d at 159. Section 9.32 of the Texas Penal Code provides, in pertinent part, that "[a] person is justified in using deadly force against another (1) if he would be justified in using force against another under Section 9.31; (2) if a reasonable person in the actor's situation would not have retreated; and (3) when and to the degree he reasonably believes the deadly force is immediately necessary: (A) to protect himself against the other's use or attempted use of unlawful deadly force; . . . ." (3) "Deadly force" means force that is intended or known by the actor to cause, or in the manner of its use or intended use is capable of causing, death or serious bodily injury." Tex. Pen. Code Ann. § 9.01(3) (Vernon 2003). "Serious bodily injury" means bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of a bodily member or organ. Id. § 1.07(a)(46). The State contends that there was no evidence that Som used or attempted to use unlawful deadly force and that appellant was not entitled to a self-defense instruction under Penal Code section 9.32. The record shows, however, that appellant requested an instruction under Penal Code section 9.31. Because it is undisputed that appellant caused serious bodily injury to Som by the use of deadly weapon, appellant used deadly force. See Tex. Pen. Code Ann. §§ 1.07(a)(46), 9.01(3); Ferrel, 55 S.W.3d at 592. Because appellant used deadly force, a section 9.31 self-defense instruction is not applicable. See id. Hence, we cannot conclude that the trial court erred by refusing to give the requested instruction. See id. Accordingly, we overrule appellant's first issue. Motion for New Trial In her second issue, appellant contends that the trial court erred by denying her motion for new trial. A trial court is given wide latitude in determining whether to grant or deny a motion for new trial. Lewis v. State, 911 S.W.2d 1, 7 (Tex. Crim. App. 1995). We review the trial court's decision for an abuse of discretion. See Salazar v. State, 38 S.W.3d 141, 148 (Tex. Crim. App. 2001); Escobar v. State, 227 S.W.3d 123, 126 (Tex. App.--Houston [1st Dist.] 2006, pet. ref'd). We do not substitute our judgment for that of the trial court; we decide only whether the trial court's decision was arbitrary or unreasonable. Escobar, 227 S.W.3d at 126. A trial court abuses its discretion only when no reasonable view of the record could support the court's ruling. Id. The trial court is the sole judge of the credibility of the witnesses at the hearing on the motion for new trial. Lewis, 911 S.W.2d at 7. Appellant, who is Cambodian, does not speak English and her trial counsel, Bill F. Leathers, does not speak Cambodian. Appellant moved for a new trial on the grounds that the verdict is contrary to the law and evidence; the Defendant was denied counsel in the case as a result of cultural differences and language barriers; material defense witnesses were kept from testifying by cultural differences and language barriers that resulted in witnesses for the defense to be unable to communicate with defense counsel in a timely manner prior to trial. (Emphasis added.) On appeal, appellant contends that "the issue which presents itself in this case is whether the trial court abused its discretion in failing to grant the motion for new trial, upon hearing evidence which established that the Appellant's interpreter had incompetently translated the proceedings." Appellant contends that she was denied her Sixth Amendment right to confront witnesses. The record shows that, at the hearing on the motion for new trial, the trial court permitted appellant to bring testimony of her trial counsel regarding various translation issues, over the State's objection. Leathers testified that, prior to trial, he had communicated with appellant through appellant's friend, Nickie Khan. Over a period of a year-and-one-half, Leathers spoke by telephone with Khan on several occasions and met with appellant and Khan on several occasions--some of the meetings lasting in excess of two hours. Leathers attested that "Khan appeared at every--every time [appellant] came to Court, up until the time of trial." Leathers informed the trial court of any communication issues at that point. Leathers testified that, at trial, an appointed interpreter, Vanthang Chi, sat with appellant and translated English testimony to Cambodian through a microphone and headset. Chi also translated appellant's Cambodian testimony to English for the jury. Leathers testified that [s]everal times I cast my eyes over, witnesses testifying, something is going on. I could see that Mr. Chi was not speaking. I don't know what Mr. Chi was thinking or what Mr. Chi was doing. All I knew was that he was not speaking into the microphone that fed the headset for the defendant. That happened, I don't know, three, four, five times that I can recall. Leathers testified that he did not bring any of his concerns to the attention of the trial court. Leathers testified that appellant's niece sat in the courtroom during the entire trial and helped Leathers communicate with appellant during breaks and that six witnesses testified for the defense during the second punishment hearing. The record shows that, at the close of evidence in the guilt and innocence phase, the trial court stated that it had actually watched the interpreter and noted that, "for purposes of the record, let the record reflect that Mr. Chi, our interpreter, has been translating simultaneously all the proceedings to the Defendant in this case." Appellant did not object or raise any issue. Subsequently, the trial court denied appellant's motion for new trial. Appellant appears to complain that Chi's translation was likely inaccurate because he did not appear to be speaking into the microphone during various portions of unspecified witnesses' testimony. Issues concerning the accuracy of an interpreter's translation raise fact questions that are properly addressed in the trial court. Garcia v. State, 887 S.W.2d 846, 875 (Tex. Crim. App. 1994) overruled on other grounds by Hammock v. State, 46 S.W.3d 889 (Tex. Crim. App. 2001); Kan v. State, 4 S.W.3d 38, 43 (Tex. App.--San Antonio 1999, pet. ref'd). Such issues are not reviewable on appeal. Kan, 4 S.W.3d at 43 (citing Garcia, 887 S.W.2d at 875). Accordingly, we overrule appellant's second issue. Conclusion We affirm the judgment of the trial court. Laura Carter Higley Justice Panel consists of Justices Taft, Hanks, and Higley. Do not publish. Tex. R. App. P. 47.2(b). 1. § § § 2. § 3. § § - §