OAHN VAN HOANG v. THE STATE OF TEXAS

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Court of Appeals of Texas, Dallas.

OAHN VAN HOANG, Appellant v. THE STATE OF TEXAS, Appellee

No. 05-08-01303-CR

Decided: January 29, 2010

Before Justices Morris, Bridges, and Murphy

OPINION

Opinion By Justice Morris

In these three cases a jury convicted, Oahn Van Hoang was convicted by a jury of aggravated assault.   He complains on appeal that the trial court erred in each case by denying his requests for jury instructions on the issues of self-defense and defense of a third party.   We conclude otherwise and affirm the trial court's judgments.

Factual Background

Appellant and his nephew became entangled in a melee at the Plano Community Center outside a concert that appellant had helped promote.   An argument started between a photographer and a security person inside the concert hall, and the dispute eventually reignited in the community center.   Appellant's nephew and the three complainants were stabbed.   When police arrived at the scene, complainant Coung Le appeared to be unconscious, and complainant Hien Nguyen's stab wound was so deep that officers could see his intestines coming out of it.   Complainant Nghia Tran testified that he was stabbed from behind in the back of his right shoulder and then on the left side of his back and his right knee.   The three complainants and appellant's nephew were treated at local hospitals.   Appellant was not harmed.

Dahn Nguyen testified that he was in the initial fracas with the photographer.   He took tickets for the concert, and appellant stood next to him for approximately one hour.   Afterward, he prevented the photographer from taking pictures of one of the singers backstage, and the fight began.   Once the backstage skirmish broke up, Dahn Nguyen stood alone outside the concert area until he saw a group of people fighting with one another.   There were many people fighting at once.   He saw the photographer hit his younger brother, complainant Hien Ngyuen, with his camera on a tripod.   Then Dahn Nguyen saw appellant stab several people, including his brother.   Appellant attempted to stab him, but he ducked.   Dahn Nguyen then screamed, “That person has a knife.”   Appellant ran out the door to escape.   Dahn Nguyen did not see anyone but appellant with a knife.

Cuong Le testified that he arrived at the concert late and was walking down a hallway in the community center when appellant stabbed him in the abdomen with a knife about three inches long.   Le asked appellant why he was stabbing him, and appellant stabbed him again on his wrist.

Appellant's nephew testified that he was also stabbed at the scene.   Although he was treated at a hospital for his wound, he never filed a complaint with police.   He claimed he did not know who stabbed him and never saw anybody with a knife.

Appellant testified for the defense as well.   He claimed he saw an angry group of people grabbing stanchions from the velvet ropes cordoning off portions of the community center and swinging them at the photographer.   Someone threw one of the stanchions at him.   According to appellant's account, the stanchion hit him and fell on the floor before he picked it up.   Then, he claimed, he saw Coung Le and another man attacking his nephew.   He screamed, “Phong, run, run for your life,” ran toward his nephew, and pushed him out of the crowd.   Appellant said that at that moment he did not have a knife in his hand but did have the stanchion that had been swung at him.

He stated, “When I swung the pipe left and right, he jumped back, and I throwing [sic] the pipe at them as hard as I can.”

Immediately afterward, appellant ran out the door to his car in the parking lot.   As he was backing out, he saw his nephew.   He told the nephew to get in the car.   Once the nephew was inside, he took him to the hospital.   Appellant claimed he had “no idea” how the complainants in the case had been stabbed.   He maintained that it was he, his nephew, and the photographer “against a huge, angry mob.”

Discussion

In his sole issue, appellant complains the trial court erred when it denied his requests for jury instructions on the law of self-defense and defense of a third party.   A person is generally justified in using force against another when and to the degree the person reasonably believes the force is immediately necessary to protect him against the other's use or attempted use of unlawful force.   See Tex. Penal Code Ann. § 9.31(a) (Vernon Supp.2009).   Likewise, a person is justified in using force or deadly force against another to protect a third person if, under the circumstances as the actor reasonably believes them to be, the actor would be justified in using force or deadly force under the self-defense statute to protect himself and the actor reasonably believes that his intervention is immediately necessary to protect the third person.   See id. § 9.33 (Vernon 2003).

An appellant is entitled to an instruction on every defensive issue raised by the evidence, whether that evidence is weak or strong, unimpeached or uncontradicted, and regardless of what the trial court may think about the credibility of the defense.  Allen v. State, 253 S.W.3d 260, 267 (Tex.Crim.App.2008).   But if the evidence of self-defense, viewed in the light most favorable to the defendant, does not establish the defense, he is not entitled to an instruction on it.   Ex parte Nailor, 149 S.W.3d 125, 132 (Tex.Crim.App.2004).   With respect to defenses such as self-defense and defense of a third party, an instruction is appropriate only when the defendant's evidence essentially admits to “every element” of the offense but interposes the justification to excuse the otherwise criminal conduct.   See Shaw v. State, 243 S.W.3d 647, 659 (Tex.Crim.App.2007).   To constitute a defense, the evidence must show the accused admitted committing the offense but justified or excused his actions so as to absolve himself of criminal responsibility for engaging in conduct that would otherwise constitute a crime.   See Nailor, 149 S.W.3d at 133 n.33 (discussing Sanders v. State, 707 S.W.2d 78 (Tex.Crim.App.1986)).   Accordingly, a defendant is not entitled to a defensive instruction if, through the testimony on the matter, he claims that he did not perform the assaultive acts alleged.   See VanBrackle v. State, 179 S.W.3d 708, 715 (Tex.App.-Austin 2005, no pet.).

In these cases, appellant was indicted for assaulting the three complainants by stabbing each with a knife.   At trial, however, appellant claimed he had no idea how the complainants received their wounds.   He did not admit to stabbing any of the complainants, nor did he ever explicitly admit to harming them in any way.1  Because he did not admit to committing the charged offenses, he was not entitled to jury instructions on self-defense or defense of a third party, and the trial court did not err in declining to give them.   See In re M.C., 237 S.W.3d 923, 927 (Tex.App.-Dallas 2007, no pet.);  VanBrackle, 179 S.W.3d at 715.   We resolve appellant's sole issue against him.

We affirm the trial court's judgment.

FOOTNOTES

FN1. Appellant admits in his reply brief that “[g]iven the physical evidence of the type of wounds inflicted and the fact there is no possibility that there was both a knife wielder and a stanchion wielder, it appears that Mr. Hoang, in fact, wielded a knife rather than a stanchion.”   He argues that “the jury may very well have concluded that Mr. Hoang was acting in self-defense despite his apparent fabrication concerning wielding a stanchion.”   He offers no authority, and we have found none, in support of his contention that “there is no rule of law or logic that precludes a defendant from asserting a self-defense claim because some aspect of his testimony is not credible on a material point.”   Rather, the caselaw makes clear that the evidence must show the defendant admitted to committing the charged offense before he is entitled to a justification defense.   See Nailor, 149 S.W.3d at 132-33..  FN1. Appellant admits in his reply brief that “[g]iven the physical evidence of the type of wounds inflicted and the fact there is no possibility that there was both a knife wielder and a stanchion wielder, it appears that Mr. Hoang, in fact, wielded a knife rather than a stanchion.”   He argues that “the jury may very well have concluded that Mr. Hoang was acting in self-defense despite his apparent fabrication concerning wielding a stanchion.”   He offers no authority, and we have found none, in support of his contention that “there is no rule of law or logic that precludes a defendant from asserting a self-defense claim because some aspect of his testimony is not credible on a material point.”   Rather, the caselaw makes clear that the evidence must show the defendant admitted to committing the charged offense before he is entitled to a justification defense.   See Nailor, 149 S.W.3d at 132-33.

JOSEPH B. MORRIS JUSTICE

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