Tuan Thanh Nguyen v. State

Affirmed and Memorandum Opinion filed April 3, 2007 Affirmed and Memorandum Opinion filed April 3, 2007. In The Fourteenth Court of Appeals ____________ NO. 14-06-00530-CR ____________ TUAN THANH NGUYEN, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 174th District Court Harris County, Texas Trial Court Cause No. 1055436 M E M O R A N D U M   O P I N I O N In two issues, appellant Tuan Thanh Nguyen challenges the legal and factual sufficiency of the evidence supporting the trial court=s negative finding on the issue of sudden passion. We affirm. I. Factual and Procedural Background Appellant pleaded guilty to murder, a first-degree felony. At the subsequent punishment hearing before the trial court, appellant sought to reduce the conviction to a second-degree felony by establishing he acted under the immediate influence of sudden passion. Appellant testified that on the night of March 19, 2005, he, his uncle, and some friends went to a pool hall, where appellant drank one beer. The complainant, Vang Tien Nguyen (AVang@), and Phu Vinh Phan (APhu@) also went to the pool hall and drank beer. According to appellant, at one point during the evening, Vang sought to Aquarrel@ with a friend of appellant=s uncle. Later, after Vang vomited as a result of drinking alcohol, appellant=s group, at the behest of his uncle who thought Athings were getting too out of hand,@ left and went to the apartment of appellant=s uncle=s friend. Vang and Phu wanted to accompany the group, but appellant=s uncle refused because Athey were too drunk.@ At the apartment, appellant, his uncle, and his friends continued to drink beer; appellant claims he drank Ahalf a can.@ According to Phu, a friend of appellant=s uncle invited Vang and him to the apartment, and the two thereafter went to the apartment and drank beer. Eventually, the argument at the pool hall came up in conversation, and a further argument ensued. According to appellant, Phu cursed at his uncle and slammed a beer can down on a table. What happened next is disputed. Appellant claims that as Vang and Phu were leaving, he requested them to come back, Atold Phu he was not to curse and disrespect his uncle,@ and told them both to leave, which they did. In his statement to police, appellant maintained that Phu pushed him, and he pushed Phu back; but, he later denied ever pushing Phu. Phu claims that as he and Vang were leaving, appellant began to argue with Vang and pushed him, and appellant=s uncle told appellant to come back inside the apartment, after which Phu and Vang left. Appellant admitted he was Abothered@ and Aa little bit mad@ that Phu slammed the can down and disrespected his uncle and that he was mad enough to ask Vang and Phu to leave. After Vang and Phu left, Vang called one of appellant=s uncle=s friends and told him to tell appellant to meet in the apartment parking lot to Atalk.@ Phu told police that appellant took the phone and argued with Vang, telling Vang he would Akick [his] ass if he ever saw him again.@ Appellant denied ever relaying such message to Vang. Appellant then walked downstairs, but, seeing no one, immediately went back upstairs. Vang then called a second time asking for appellant to come downstairs. Though appellant claimed in portions of his police statement and testimony that he went downstairs a second time Ato talk only,@ he admitted on cross examination that he knew he was going downstairs to meet Vang for a fight. Further, though he said the apartment A[could not] be locked at any time,@ he admitted he could have stayed inside the apartment rather than go downstairs to meet Vang. Downstairs appellant claimed he saw, through the darkness and rain, a shadow approaching him from about ten feet away. Phu, on the other hand, claimed that when he and Vang arrived, appellant was waiting for them. Thereafter, appellant maintained that the shadow, who he later identified as Vang, abruptly struck him over the right eye with Aa very hard object, like a bottle,@ causing appellant to fall to the ground and think he was blind, as his eye stung and bled profusely. When asked about whether he was aware that the police did not recover a bottle or other blunt instrument from the scene, appellant remarked that the area had been cleaned by a person from the apartment complex. Appellant claimed that Vang pinned him on the ground and repeatedly hit him, forcing appellant to use his arms to protect his face. Sometime during the alleged assault, appellant noticed that his manicuring knifeCwhich he obtained in manicuring school and happened to have in his pocketChad fallen out of his pocket onto the ground next to him. Appellant then grabbed the knife, used both hands to unlock it and expose the blade, and, according to appellant, slashed Afreely@ at Vang in a horizontal motion to scare Vang and Ain self-defense@ to stop Vang=s assault. Appellant maintained that he was scared for his life, did not intend to stab or kill Vang, and did not know Vang was stabbed six times, including in the chest and back. Vang thereafter made his way back to Phu=s car. Phu claimed that as they drove away, appellant banged on the vehicle=s passenger window. Appellant maintained that, Ashaking,@ he went directly back upstairs to the apartment where his uncle=s friend bandaged his eye wound. Vang was pronounced dead on arrival at the hospital. The autopsy report indicates Vang sustained six Asharp force@ injuries: five stab wounds ranging up to four inches deep to his chest and back and one superficial wound to his upper arm. Aside from a laceration above appellant=s eye, minor scrapes on his forehead, andCaccording to appellantCa headache and swollen arm, appellant did not suffer any other injuries. After considering the evidence, the trial court convicted appellant of first-degree murder, implicitly rejecting the sudden passion issue, and sentenced him to thirty years= confinement. Appellant now complains the evidence is legally and factually insufficient to support the trial court=s negative finding on sudden passion. III. Analysis Appellant contends the evidence is legally insufficient because no evidence in the record supports a negative sudden passion finding, and the record supports a contrary finding as a matter of law. Appellant further contends the evidence is factually insufficient, pointing to the following evidence: (1) appellant stabbed Vang only after Abeing sucker punched with a hard object in the dark,@ (2) Vang jumped on appellant and continuously kicked him, (3) appellant was blinded by the assault, (3) appellant Afought for his life, believing [Vang] was about to kill or maim him,@ (4) appellant was Ashaking@ after the attack, (5) the incident unfolded rapidly, leaving no time for calm deliberation over consequences, (6) neither appellant nor Vang expected a fight to ensue, (7) the meeting in the parking lot was Vang and Phu=s idea, not appellant=s, (8) photos indicate appellant was in fact injured, and (9) the stab wounds Amilitate in favor of a finding that appellant was enraged and out of control@ due to Vang=s assault. At the punishment phase of a murder trial, a defendant may reduce a murder charge from a first-degree felony to a second-degree felony by proving by a preponderance of the evidence that Ahe caused the death under the immediate influence of sudden passion arising from an adequate cause.@ See Tex. Penal Code Ann. ' 19.02(d) (Vernon 2003). A>Sudden passion= means passion directly caused by and arising out of provocation by the individual killed or another acting with the person killed which passion arises at the time of the offense and is not solely the result of former provocation.@ Id. ' 19.02(a)(2). A>Adequate cause= means cause that would commonly produce a degree of anger, rage, resentment, or terror in a person of ordinary temper, sufficient to render the mind incapable of cool reflection.@ Id. ' 19.02(a)(1). An attack on the legal sufficiency of the evidence to support a negative finding on sudden passion involves two steps. First, we must examine the record for evidence that supports the negative finding while ignoring all evidence to the contrary. See Cleveland v. State, 177 S.W.3d 374, 387 (Tex. App.CHouston [1st Dist.] 2005, pet. ref=d), cert. denied, 126 S. Ct. 1774 (2006); Nolan v. State, 102 S.W.3d 231, 238 (Tex. App.CHouston [14th Dist.] 2003, pet. ref=d). Second, if no evidence supports the negative finding, we must examine the entire record to determine whether it establishes the contrary proposition as a matter of law. Cleveland, 177 S.W.3d at 387; Nolan, 102 S.W.3d at 238. In conducting a factual‑sufficiency review of the negative finding on sudden passion, we do not view the evidence Ain the light most favorable to the prosecution.@ Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997).[1] Rather, we look at all evidence in a neutral light and will reverse only if (1) the evidence is so weak that the finding seems clearly wrong and manifestly unjust or, (2) considering conflicting evidence, the finding, though legally sufficient, is nevertheless against the great weight and preponderance of the evidence. See Watson v. State, 204 S.W.3d 404, 414B15 (Tex. Crim. App. 2006). However, it is not enough that we may harbor a subjective level of reasonable doubt to overturn a finding that is founded on legally sufficient evidence. See id. at 417. We cannot conclude that a finding is Aclearly wrong@ or Amanifestly unjust@ simply because, on the quantum of evidence admitted, we would have voted differently had we been the fact finder. See id. Nor can we declare that a conflict in the evidence justifies a new trial simply because we may disagree with the fact finder=s resolution of that conflict. See id. Rather, before ordering a new trial, we must first be able to say, with some objective basis in the record, that the great weight and preponderance of the (albeit legally sufficient) evidence contradicts the verdict. See id. In conducting our factual-sufficiency review, we must also discuss the evidence appellant claims is the most important in allegedly undermining the finding. See Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003). Moreover, under both legal and factual sufficiency reviews in this context, we defer to the fact-finder=s determination of witnesses= credibility and of the weight given to the evidence. Cleveland, 177 S.W.3d at 388. We conclude the evidence is legally and factually sufficient. First, the trial court=s finding depended largely on accepting appellant=s version of the events, and, as fact finder, the trial court had the right to believe or disbelieve his account. See id.; see, e.g., Corpus v. State, No. 07‑02‑0475‑CR, 2005 WL 924707, at *4 (Tex. App.CAmarillo Apr. 20, 2005, pet. ref=d) (not designated for publication) (finding evidence factually sufficient to support negative finding on sudden passion where contrary finding depended largely on appellant=s version of stabbing incident, which jury could choose to disbelieve). Moreover, substantial evidence in the record undercuts appellant=s theory that he stabbed Vang under the immediate influence of sudden passion arising from an adequate cause. Appellant admitted on cross examination that he knew he was going downstairs for a fight, and Phu told police appellant pushed Vang, threatened to Akick [his] ass,@ and was waiting for him and Vang when they arrived at the apartment. Such evidence indicates appellant anticipated a fight and does not exemplify sudden passion. See McKinney v. State, 179 S.W.3d 565, 570 (Tex. Crim. App. 2005) (finding no evidence of sudden passion where appellant and victim previously fought, and appellant thereafter retrieved gun while waiting for victim to return home, indicating appellant prepared himself to respond to anticipated altercation); Goff v. State, 681 S.W.2d 619, 625 (Tex. App.CHouston [14th Dist.] 1983) (finding no evidence of sudden passion where appellant agreed to Ago outside@ to settle differences with victim after verbal altercation in club, and, after attempting to knock victim off balance, appellant felt stab in leg, got scared and feared future stabbing, and used own knife to stab victim to death), aff=d, 720 S.W.2d 94 (Tex. Crim. App. 1986). Appellant also admitted he could have stayed inside the apartment, rather than twice responding to Vang=s request to come downstairs. Compare Escobedo v. State, 202 S.W.3d 844, 847 (Tex. App.CWaco 2006, pet. ref=d) (finding evidence factually sufficient to support negative finding on sudden passion where appellant, who initially asked victim to stop following him and later invited victim into home where they engaged in sexual acts, could have contacted police or left home if he felt afraid of victim, rather than killing him after his refusal to leave), with Guerra v. State, 936 S.W.2d 46, 49 (Tex. App.CSan Antonio 1996, pet. ref=d) (affirming finding of sudden passion where appellant faced attempted knife attack by victim and could not withdraw from situation). Finally, Phu=s statement that appellant banged on the passenger window of the car after the incident does not comport with appellant=s repeated claim that he was scared for his life and thus acted out of sudden passion. See Ramon v. State, No. 08‑03‑00045‑CR, 2005 WL 623281, at *7B8 (Tex. App.CEl Paso Mar. 17, 2005, no pet.) (not designated for publication) (finding no evidence of sudden passion where appellant, after shooting victim, exchanged gunfire with police officer, threatened victim=s co-worker, and taunted and pointed gun at officer). We conclude that some evidence in the record supports the trial court=s negative finding on sudden passion. We further do not find that the evidence is so weak as to render the finding clearly wrong and manifestly unjust or that the finding is against the great weight and preponderance of the evidence. Accordingly, we hold that the evidence is legally and factually sufficient to support the trial court=s negative finding on sudden passion. We overrule appellant=s issues and affirm the trial court=s judgment. /s/ Leslie B. Yates Justice Judgment rendered and Memorandum Opinion filed April 3, 2007. Panel consists of Justices Yates, Anderson, and Hudson. Do Not Publish C Tex. R. App. P. 47.2(b). [1] We note that this court recently acknowledged the viability of a factual sufficiency review of a negative finding on sudden passion. See Velazquez v. State, No. 14‑06‑00086‑CR, ___ S.W.3d ____, 2007 WL 703742, at *3 & n.1 (Tex. App.CHouston [14th Dist.] Mar. 8, 2007, no pet. h.).