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Date: 08-16-2019

Case Style:

Son T. Duong v. The State of Texas

Case Number: 02-18-00128-CR

Judge: Elizabeth Kerr

Court: Court of Appeals Second Appellate District of Texas at Fort Worth

Plaintiff's Attorney: Joseph W. Spence

Defendant's Attorney: Barry G. Johnson

Description:





Federal due process requires that the State prove beyond a reasonable doubt
every element of the crime charged. Jackson v. Virginia, 443 U.S. 307, 316, 99 S. Ct.
2781, 2787 (1979); see U.S. Const. amend. XIV. In our due-process evidentiary
sufficiency review, we view all the evidence in the light most favorable to the verdict
to determine whether any rational factfinder could have found the crime’s essential
elements beyond a reasonable doubt. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789;
Queeman v. State, 520 S.W.3d 616, 622 (Tex. Crim. App. 2017). The standard of review
is the same for direct and circumstantial evidence cases; circumstantial evidence is as
probative as direct evidence in establishing guilt. Jenkins v. State, 493 S.W.3d 583,
599 (Tex. Crim. App. 2016).
4
A. The Evidence Kevin Nguyen and Michelle Ngo were best friends and would talk to each
other every day on the phone, but Ngo had not responded to any texts or calls in
about two weeks. So Khang Bui and Nguyen drove over to Ngo’s house around
3:00 a.m. on May 25, 2017, to check on her. Ngo lived with her five children and her
nephew, Duong.
Shortly after Bui and Nguyen arrived, the garage door to Ngo’s house opened,
and Duong walked out of the garage and down the driveway with a gun in his hand.
Seeing Duong’s gun, Bui panicked and drove away, but Duong fired anyway and
struck Bui in the back with one shot and grazed Bui’s head with another.
The shooting prompted a series of 911 calls. A neighbor first called
911 reporting having heard shots fired around 3:29 a.m.; Bui called around 3:42 a.m.;
and Nguyen called around 4:11 a.m.
Inside her house, Ngo heard the shots and then heard Duong come back
indoors and say, “I’m going to go look for him,” and “I’m going to shoot any MFer
who comes over here,” after which Duong left in his Camaro. Not until Nguyen
called Ngo did she learn that Bui had been shot.
But Ngo herself waited until 4:20 a.m. to call 911. She explained that about two
weeks earlier, surveillance cameras had been set up inside her house; there had already
been an outside camera viewing the driveway, but interior cameras were added. Ngo
testified that she was afraid to call the police because Duong could view the
5
surveillance cameras remotely. She also admitted stating in her 911 call that she was
being held hostage in her home and, further, acknowledged telling Nguyen the same
thing.
Officer Rene Sandoval, who responded to the shooting call, saw a surveillance
screen in the kitchen and found the mainframe in Duong’s bedroom closet. And the
crime-scene investigator, Anna-Dia Tricksey, found another surveillance video screen
in Duong’s bedroom. Officer Sandoval described Ngo as being terrified because
Duong knew where she was at any given moment, so Officer Sandoval adjusted the
cameras to blind any onlooker.
Investigator Tricksey discovered that the driveway camera had captured the
shooting. One video, in which Duong is facing the camera, showed Duong getting
into his parked Camaro that night around 12:30 a.m. In a second video around
3:18 a.m., Duong, with his back to the camera but wearing the same clothing, can be
seen with a gun in his right hand walking from the garage to the street where—
according to Detective Russell Evans—Duong “almost does a jump move and both
of his hands go up” and he is poised to start shooting.1 Even viewing Duong’s video

1The driveway light illuminates the driveway area but not the street; Bui’s car’s headlights, initially on the camera’s left, temporarily illuminate the street as seen on the video. But by the time Duong reaches the street, Bui has driven off the screen to the right, and Duong steps into the darkness. Although the video is not entirely clear, Duong appears to hop into a crouching position associated with firing a pistol.
6
image from the back, Ngo could identify him. In addition, having seen Duong both in
a photograph and in person, Detective Evans testified that the videos showed Duong.
When viewing the second video, Bui testified that it caught a man walking
down the driveway with a gun in his hand and showed Bui’s car driving away. But Bui,
who had never met Duong or the father of Ngo’s children (Vince), thought the man
was Vince.
When Nguyen had called 911 that night, he identified the shooter as Ngo’s
nephew, not Vince. Nguyen did not testify at trial, however; Detective Evans
explained that Nguyen was afraid and refused to help.
Nguyen’s reluctance was not unique. Ngo herself was uncomfortable
incriminating Duong, her sister’s son, and did not want to testify. She maintained that
the surveillance cameras were “mostly” her idea. Despite her reservations, Ngo
acknowledged that the man in the videos looked like Duong, not like Vince, and that
after Duong had left earlier that night to take a girl home, he came back before
1:00 a.m. and did not leave again until after she had heard the shots.
Vince—the father of Ngo’s children or Ngo’s “ex-husband”—lived in
California. Although Vince had come by to visit the children once sometime within a
week or two before the shooting, Ngo denied that anyone was in the house that night
other than her and her children.
Later the same day as the shooting, the police arrested Duong after a “high
risk” traffic stop. Police surveillance had located Duong and had seen him carrying
7
two bags and getting into the backseat of a white Lexus, behind the driver. When the
police later pulled the Lexus over, Duong was alone in the backseat and still on the
driver’s side. In the backseat with him were a semiautomatic pistol visible on the
floorboard where Duong was sitting, a credit card with Duong’s name on it, and two
black bags. The semiautomatic pistol was fully loaded. In the pocket attached to the
passenger’s seat’s back was Duong’s Louisiana ID card.
The magazine capacity of the semiautomatic pistol that the police recovered
was ten rounds, and ten casings were precisely what Investigator Tricksey recovered
from the shooting location; she also recovered several “projectiles” (bullets) from
Bui’s car. The bullet that the doctors had removed from Bui’s body was collected as
well.
A firearm and tool-mark examiner determined that the ten casings and four of
the six recovered bullets—which included the one removed from Bui’s body—were
fired from the semiautomatic pistol that the police recovered when arresting Duong.
Two of the six bullets were too damaged to make any kind of conclusion.
The State also introduced evidence that Duong had been convicted of a felony
in 2011. B. Discussion A defendant’s mere presence where an item such as a weapon is found does
not suffice, by itself, to show actual care, custody, or control of the item. See Evans v.
State, 202 S.W.3d 158, 162 (Tex. Crim. App. 2006). The State must prove that the
8
defendant knew of the weapon’s existence and that he exercised actual care, custody,
control, or management over it. Belle v. State, 543 S.W.3d 871, 875 (Tex. App.—
Houston [14th Dist.] 2018, no pet.). If the firearm (or other item) is not found on the
defendant, or if it is not in his exclusive possession, the State must offer additional,
independent facts and circumstances affirmatively linking him to the firearm. Id. In
this way, an innocent bystander will not be convicted solely because of his fortuitous
proximity to a firearm. Ramirez v. State, No. 02-12-00077-CR, 2012 WL 4937103, at
*2 (Tex. App.—Fort Worth Oct. 18, 2012, no pet.) (mem. op., not designated for
publication). The evidence’s logical force, not the number of connecting factors,
determines possession. Id. at *3.
Here, the evidence was uncontradicted that Duong was a convicted felon, and
the police found the semiautomatic pistol on the floorboard precisely where Duong
was sitting in the backseat. No one else was in the backseat, and other items—such as
Duong’s ID and credit card—were in the same immediate area. Viewing the evidence
in the light most favorable to the verdict, the logical force of the evidence allowed a
rational juror to conclude beyond a reasonable doubt that Duong was a felon
unlawfully in possession of a firearm away from the premises where he lived. See
Queeman, 520 S.W.3d at 622; Evans, 202 S.W.3d at 162; Belle, 543 S.W.3d at 875;
Ramirez, 2012 WL 4937103, at *3.
And the semiautomatic pistol that the police recovered when arresting Duong
was the same one that had left shell casings outside Ngo’s house and bullets in Bui’s
9
car and body. The driveway video shows Duong leaving the garage with a pistol in his
hand and Bui’s car driving away. Although the video then shows Duong stepping into
the darkness of the street and does not clearly show what Duong does once there,
Bui’s testimony and the physical evidence—the shell casings and the bullets—answer
that question. A rational juror could find beyond a reasonable doubt that Duong
intentionally or knowingly caused Bui bodily injury by shooting him with a firearm. See
Queeman, 520 S.W.3d at 622.
We overrule Duong’s second and third issues. Confrontation Clause In Duong’s first issue, he argues that the trial court denied him his Sixth
Amendment right to confront witnesses when, during the jury’s deliberations, it
permitted the jury to listen to and view audio and video recordings in the courtroom
without Duong’s being present. We disagree. A. The Record While deliberating, the jurors asked to see certain videos and hear certain
911 calls. In discussing this request with the attorneys, the trial court commented that
reviewing the audio and video recordings would be easier in the courtroom. When
questioned about whether Duong wanted to be present, defense counsel stated that
Duong wanted both to be present and to “dress out”—that is, to wear street clothes.
Duong had tried to commit suicide earlier in the trial by cutting his wrists and
10
according to the bailiff was “still in his moo-moo”2; the bailiff thought that allowing
Duong to dress in regular clothes was ill-advised because Duong might try to hang
himself in the holding cell. Defense counsel stated that he preferred that Duong not
be present because “we can’t . . . do anything” other than listen to the 911 recordings
and watch the videos along with the jurors. The prosecutor expressed security
concerns and misgivings that, “based on his behavior the last time we saw him in the
courtroom,” Duong might make an outburst before the jury, so she suggested turning
on the “baby monitor” in the holding cell so that Duong could hear what was
occurring. Stating that “this isn’t new evidence or testimony,” the trial court agreed to
use the monitor, and defense counsel expressly stated that he had no objection
because “[w]e believe that allows sufficient presence with the proceedings for my
client.”
But after the jury entered the courtroom and started reviewing the recordings,
Duong began yelling from his nearby holding cell: “I wanted to be in court. I told my
attorney I wanted to be in court.” The trial court excused the jury and instructed the
bailiff to put Duong on a different floor. The jurors later returned to the courtroom
and completed their review, after which they went back to the jury room to continue
2Although the record does not explain what a “moo-moo” (more likely a muumuu) is, the context suggests that Duong was still wearing the jail-provided safety clothing to which the trial court had referred on the second day of trial: “And so understanding that it could hurt your case, you still want to wear what you have on, which is the jail clothing. And it’s not even just a regular jail clothing, it’s the safety clothing because of I guess what happened last night.”
11
deliberating. With the jury absent, defense counsel then put on the record that one of
the reasons he had not wanted Duong in the courtroom was because he feared that
Duong would make an outburst like the one Duong had just made from his holding
cell.
B. The Standard of Review To a large extent, the constitutional right to be present is rooted in the
Confrontation Clause of the Sixth Amendment. United States v. Gagnon, 470 U.S. 522,
526–27, 105 S. Ct. 1482, 1484 (1985). But in some situations where the defendant is
not actually confronting witnesses or evidence against him, the Supreme Court has
recognized that this right is protected by the Due Process Clause. Id., 105 S. Ct. at
1484. A defendant has a due-process right to be present at a proceeding whenever his
presence reasonably and substantially relates to the fullness of his opportunity to
defend against the charge. Id., 105 S. Ct. at 1484. The defendant’s presence is a due
process condition only to the extent that his absence would thwart a fair and just
hearing. Id., 105 S. Ct. at 1484. The propriety of excluding a defendant from a trial
proceeding should be considered in light of the whole record. Id., 105 S. Ct. at 1484.
If a defendant could have done nothing or had nothing to gain by attending, there is
no violation. Id. at 527, 105 S. Ct. at 1484–85.
Providing an analogous example, in Snyder v. Massachusetts the trial court granted
a motion to have the jury view the alleged crime scene but denied the defendant’s
motion to view the scene with the jury. 291 U.S. 97, 103, 54 S. Ct. 330, 331 (1934)
12
(Cardozo, J.).3 Simply viewing the scene without comment from any source—which is
similar to the jurors here reviewing recordings during deliberation without comment
from the parties—was the Supreme Court’s first topic: “At the outset, we consider a
bare inspection and nothing more, a view where nothing is said by [anyone] to direct
the attention of the jury to one feature or another.” Id. at 108, 54 S. Ct. at 333. The
Court concluded that this was a constitutional nonissue: “The Fourteenth
Amendment does not assure to a defendant the privilege to be present at such a time.
There is nothing he could do if he were there, and almost nothing he could gain.” Id.,
54 S. Ct. at 333. C. Discussion As defense counsel correctly pointed out, while the jurors reviewed the
recordings there was nothing for anyone else to do. We hold that the Snyder rationale
applies here and overrule Duong’s first issue. See id., 54 S. Ct. at 333.

3The Supreme Court later overruled Snyder twice on other grounds. Duncan v. Louisiana, 391 U.S. 145, 154–55, 88 S. Ct. 1444, 1450–51 (1968) (rejecting dicta in Snyder that “the right to jury trial is not essential to ordered liberty and may be dispensed with by the States regardless of the Sixth and Fourteenth Amendments.”); Malloy v. Hogan, 378 U.S. 1, 6, 84 S. Ct. 1489, 1492 (1964) (“We hold today that the Fifth Amendment’s exception from compulsory self-incrimination is also protected by the Fourteenth Amendment against abridgment by the States.”). But both the Supreme Court and the Texas Court of Criminal Appeals have continued to cite Snyder for its discussion of a defendant’s right to be present. Kentucky v. Stincer, 482 U.S. 730, 745, 107 S. Ct. 2658, 2667 (1987); Routier v. State, 112 S.W.3d 554, 576– 77 (Tex. Crim. App. 2003).
13
Competency In Duong’s fourth issue, he argues that the trial court abused its discretion in
failing to order a competency hearing when Duong attempted suicide after the first
day of testimony and made other self-defeating decisions and inappropriate outbursts
during the trial. We disagree. For the reasons set out below, the trial court could have
reasonably concluded that Duong was deliberately trying to sabotage the trial; it
follows that the trial court did not abuse its discretion. A. Standard of Review Putting an incompetent person to trial violates due process. Turner v. State,
570 S.W.3d 250, 262 (Tex. Crim. App. 2018). The code of criminal procedure sets out
the parameters of competency:
(a) A person is incompetent to stand trial if the person does not have:
(1) sufficient present ability to consult with the person’s lawyer with a reasonable degree of rational understanding; or (2) a rational as well as factual understanding of the proceedings against the person. (b) A defendant is presumed competent to stand trial and shall be found competent to stand trial unless proved incompetent by a preponderance of the evidence. Tex. Code Crim. Proc. Ann. art. 46B.003.
If the court determines that some evidence supports an incompetent-to-stand
trial finding, a jury is to be empaneled to determine the defendant’s competency to
stand trial. Moore v. State, 999 S.W.2d 385, 393 (Tex. Crim. App. 1999). In determining
14
whether evidence requires empaneling a separate jury to conduct a competency
hearing, the trial court considers only the evidence tending to show incompetency and
whether there is some evidence—a quantity more than none or a scintilla—that
rationally could lead to an incompetency determination. Id. The same standard applies
whether the issue is presented pretrial or during trial. Id. A competency hearing is not
required unless the evidence is sufficient to create a bona fide doubt in the judge’s
mind whether the defendant meets the test of legal competence. Id.
On appeal, the standard of review is whether the trial court abused its
discretion by not empaneling a jury to conduct a competency hearing. Id. Under the
abuse-of-discretion standard, we defer not only to a trial judge’s resolution of disputed
facts, but also to the trial judge’s right to draw reasonable inferences from those facts.
Cantu v. State, 253 S.W.3d 273, 282 (Tex. Crim. App. 2008); see McDonald v. State,
No. 02-17-00264-CR, 2018 WL 5289358, at *6 (Tex. App.—Fort Worth Oct. 25,
2018, pet. ref’d) (mem. op., not designated for publication); Arroyos v. State, Nos. 02
11-00135-CR, 02-11-00136-CR, 2012 WL 1555900, at *1 (Tex. App.—Fort Worth
May 3, 2012, no pet.) (mem. op., not designated for publication).
15
B. The Record (The Short Version)4 An hour before trial was to start, Duong requested an opportunity to hire new
counsel. After the trial court informed Duong that the trial would proceed, Duong
refused to remain in the courtroom during voir dire. To accommodate him, the trial
court put a monitor in Duong’s holding cell so that he could listen to the proceedings.
During the first day of testimony, Duong was present in the courtroom and did
nothing to disrupt the proceedings.
But that night, Duong tried to commit suicide. Later in the trial, the bailiff
seemed skeptical about how serious this attempt was, describing the cuts to Duong’s
wrists as superficial and not requiring any stitches. Regardless, not dressed even in
regular jail clothing but in “safety clothing,” as we discussed above, Duong insisted on
sitting in the courtroom against defense counsel’s advice, which he succeeded in
doing. Only moments after the jury was seated in the courtroom, Duong announced
to the jurors that he had attempted to commit suicide and tried to show them his
wrists. And only 26 minutes after the jury had entered the courtroom and the first
witness had taken the stand, Duong insisted on a bathroom break. After that break,
Duong refused to return to the courtroom, so trial resumed with Duong in his
holding cell with the monitor.
4In the appendix, we provide more detailed summaries and lengthy excerpts from the reporter’s record showing the dynamics among Duong, defense counsel, the trial court, and ultimately the bailiff. For attorneys facing a similar situation, the appendix might prove insightful.
16
During the afternoon, defense counsel reported that Duong wanted to remain
in his holding cell. But after the State rested, the trial court had Duong brought back
to the courtroom, where he remained mute and refused to answer any questions, so
he was returned to his holding cell. After the jury retired to deliberate, it sent a note
asking to review some of the videos and 911 recordings; the trial court decided that,
given the late hour, the jurors would review the requested items in the courtroom the
following day.
That next morning, Duong not only wanted to be in the courtroom while the
jurors reviewed the 911 recordings and the videos, but he also wanted to “dress out.”
The bailiff opined that putting Duong in regular clothing presented a security risk
because Duong might try to hang himself in the holding cell (presumably with one of
the separate items of clothing). For his part, defense counsel preferred that Duong
not be in the courtroom because they would only be observing the jurors watching
videos and listening to recordings. And the State was concerned that Duong would
make another outburst, so it recommended leaving Duong in his holding cell with the
monitor, which was the course of action that the trial court took.
Once the jurors were in the courtroom, though, Duong began yelling from his
holding cell that he wanted to be in the courtroom. After the trial court sent the jurors
back to the jury room, the bailiff moved Duong to a holding cell on another floor.
Later, after the jury had finished deliberating and notified the trial court that it
had rendered verdicts, the trial court brought Duong back to ask him if he wanted to
17
be present for the verdicts. Duong indicated that he did not. But once Duong was
back in his holding cell, Duong again made such a racket that the trial court again had
him moved to a different floor. After the jury announced its guilty verdicts, the
punishment trial began.
The next day, when the punishment trial resumed, defense counsel informed
the court that he had seen Duong and that Duong refused to answer any questions.
Defense counsel reported, “So he’s expressed a desire not to be present or participate,
Judge.” The punishment trial resumed.
But later, when the jury retired to deliberate on punishment, the trial court had
Duong brought back. This time, however, Duong so actively resisted the bailiff that
the trial court had Duong sent back to the holding cell where, once again, Duong was
provided a monitor so that he could listen to the proceedings. C. Discussion Deferring to the trial court’s resolution of disputed facts and its right to draw
reasonable inferences from those facts, we conclude that the trial court could have
reasonably decided that Duong was deliberately trying to abort the trial or to seed the
record with reversible error, either of which showed that Duong understood the
nature of the proceedings. See Tex. Crim. Proc. Code Ann. art. 46B.003(a); Cantu,
253 S.W.3d at 282. The evidence was insufficient to show a bona fide doubt about
Duong’s competency to stand trial. See Moore, 999 S.W.2d at 393.
18
Regarding a disruptive defendant, the court of criminal appeals has written,
“While appellant’s comments were inappropriate violations of court decorum, they do
not constitute evidence of his inability to communicate with counsel, or factually
appreciate the proceedings against him.” Id. at 395. “To the contrary,” the court
continued, “appellant’s outbursts were timely, topical, and logically related to the
questions and answers offered during the examination of other witnesses.” Id. The
court concluded, “We reject appellant’s contention that his unruly and disruptive
courtroom demeanor are probative of incompetence to stand trial. If such actions
were probative of incompetence, one could effectively avoid criminal justice through
immature behavior.” Id. We agree. On this record, the trial court could reasonably
conclude that it was facing a disruptive but competent defendant intent on stopping
the trial; we thus hold that the trial court did not abuse its discretion by not having a
competency hearing.
We overrule Duong’s fourth issue.

Outcome: Having overruled Duong’s issues, we affirm the trial court judgments.

Plaintiff's Experts:

Defendant's Experts:

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