2022-10-12

TO THE HONORABLE COURT OF APPEALS:

COMES NOW the State of Texas, appellee in the above entitled and
numbered appeal, by and through its 47th District Attorney Randall Sims, and
submits its brief in response to the brief of appellant, Lopphay Gum Pratommarath.
Appellant was convicted of murder in the 108th Judicial District Court of Potter
County.

STATEMENT OF THE CASE

Appellant appeals his judgment of conviction of murder, a first degree felony.
Tex. Penal Code Ann. Sec. 19.02(c). After a trial on March 14-17, 2022, a jury
convicted appellant of the indicted offense. Appellant elected for the jury to assess
punishment. RR6: 48. Following a hearing on punishment, the jury assessed
punishment at imprisonment for life. RR6: 61. Appellant filed a timely notice of
appeal on March 17, 2022. CR: 141.

APPELLANT’S ISSUE

Did the trial court correctly charge the jury regarding Appellant’s defensive
theory?

THE STATE’S RESPONSE

Appellant failed to show that the charge was erroneous; in any event, appellant
did not object to the charge and he suffered no egregious harm.

FACT STATEMENT

On March 12, 2020, Appellant shot Husin Bi in the head with a revolver,
killing him instantly. RR4: 45-46, 77-79, 133-34; RR5: 23-25. This is undisputed.
RR6: 32-32; Appellant’s Brief at 10. As addressed below, appellant’s one issue on
appeal relates to the jury instruction on his defense of a third person defense—his
contention that he was defending his acquaintance, Benito Ruiz, from the victim,
Husin Bi, who may have had a knife. Appellant’s Brief at 8. This summary focuses
primarily on the evidence related to that defense.

Evidence regarding appellant’s alternative trial defense that the gun discharged
accidentally is also summarized in detail because that defense is also relevant to
the to the harm analysis.

The lead up. Appellant ran a gambling establishment consisting of several
slot machines inside a house in Amarillo. RR4: 65. Benito Ruiz and his girlfriend,
Evelyn Gonzales, were regular customers and acquaintances of appellant. RR4: 65-
66; 118-19. Mr. Ruiz and Ms. Gonzales sometimes sold illegal drugs out of their
home. Husin Bi, the victim, bought drugs from them, or exchanged jewelry for
drugs. RR4: 104, 114. Ms. Gonzales testified that, about two weeks before the
shooting, she believed Mr. Bi stole her wallet and $600 in it that she had earmarked
to pay the rent. RR4: 116-118.

The confrontation. Ms. Gonzales and Mr. Ruiz were unable to locate Mr. Bi
following the theft until they visited appellant’s slot house about two weeks later and
happened to see him there. RR4: 118, 123. Mr. Ruiz approached Mr. Bi, who was
playing at a machine in one of the rooms. RR4: 71. In the confrontation that
followed, Mr. Ruiz was the aggressor. He loudly demanded that Mr. Bi return the
money, and he either took off his shirt or sweater or rolled up his sleeves in
preparation for a fight. RR4: 75, 127; RR5: 20. Ms. Gonzales testified that Mr. Ruiz
was “in charge in the argument.

” RR4: 149. Michelle Rodriguez, who witnessed the first part of the altercation,
testified that Mr. Ruiz was in Mr. Bi’s face, yelling and was the aggressive one. RR4: 174.

While this was happening, appellant walked into the room, told the women to
get out, and sat in a chair next to Mr. Ruiz. RR4: 73. Mr. Ruiz testified that appellant
told him that Mr. Bi had won some money and had about $600 in his possession.
RR4: 94.

The knife. Mr. Ruiz’s testimony regarding whether Mr. Bi had a knife shifted
somewhat during trial. Initially, he suggested he did not see a knife:

Q. During the initial confrontation with the (Mr. Bi) did you see or did he
have any weapons when you were talking to him or you guys were
confronting?

A. As far as -- I know I didn't see nothing in his hand, but he had his hand in
his pocket the whole time, trying to pull something out.

Q. Okay. Did you ever see what he had pulled out -- did he ever pull out
whatever it was in his pocket?

A. No, sir.

RR4: 75. On the other hand, Mr. Ruiz acknowledged that he reported to police that
Mr. Bi had a knife. RR4: 90. He then testified as follows:

Q. Now, I'm asking you on the witness stand today –
A. Yes, sir.
Q. – did you ever see (Mr. Bi) with a knife?
A. I probably seen it -- like, him pull it out of his pocket, but it didn't fully
come out of his pocket.
Q. Did you ever see a blade?
A. Yes, sir.
Q. Did he threaten you with it?
A. No, sir.
Q. Did he ever point it at you?
A. No, sir.
RR4: 90.

Two other witnesses testified that they heard Mr. Ruiz declare that Mr. Bi had
a knife. Ms. Gonzales testified that Mr. Ruiz told Mr. Bi to “put the knife away.”
RR4: 129. Ms. Gonzales stated that, at that point, appellant stood up, pulled out a
gun, pointed it at Mr. Bi, and told him to put the knife away. RR4: 130-133. Mr.
Bi responded that “he wasn’t touching the knife.” RR4: 133. Ms. Gonzales testified
that she did not see a knife herself and that Mr. Bi made no stabbing, slashing, or
cutting motions that she saw. RR4: 129-30.

Kristopher Tomberlin, a patron of the slot house, was in the room where the
shooting happened. He testified:

And then he (Mr. Ruiz) goes, well, what are you reaching for. You got a
knife or what; you got a knife. And he goes, no, I don't have nothing. But
he was ... fidgeting with his pocket like this (indicating). And he goes,
oh, yeah, you've got a knife; you've got a knife. And then (appellant) was,
like, oh, you ain't going to have no knife in here, because he was working
there, and that's when -- that's when it happened.

RR5: 20-21. Mr. Tomberlin testified that this was when appellant “pulled the gun
out.” Mr. Tomberlin did not see a knife himself. RR5: 21.

The shooting. Mr. Ruiz, Ms. Gonzales, and Mr. Tomberlin were the
three testifying eyewitnesses to the shooting. Mr. Ruiz and Ms. Gonzales testified
that, when appellant pointed the gun at Mr. Bi, Mr. Bi raised his hand and tried to
swat or swipe it away. Mr. Ruiz testified that Mr. Bi “tried to swat the gun out of
his face” (RR4: 79), that his hand seemed to miss the gun, but that the gun fired as
this happened. RR4: 95, 103. Mr. Ruiz stated that appellant looked surprised and
immediately declared it was an accident. Mr. Ruiz did not think the shooting was
intentional. RR4: 80, 96.

Ms. Gonzales testified that, when Mr. Bi saw the gun, “he pushes it away.”
RR4: 133. Appellant re-aimed the gun at Mr. Bi’s face and Mr. Bi pushed it away a
second time. Appellant again aimed the gun at Mr. Bi. Mr. Bi tried to push the gun
away a third time and the gun went off. RR4: 133-34. The final swipe hit the gun
around where appellant’s finger was on the trigger. RR4: 151. Appellant
immediately declared it an accident. RR4: 136. Ms. Gonzales believed the gun
would not have gone off if Mr. Bi had not swiped at it. RR4: 146.

Mr. Tomberlin saw no swatting by Mr. Bi. He testified that appellant was
pointing his gun at Mr. Bi, telling Mr. Bi he could not have a knife on premises. Mr.
Bi denied having a knife and the gun went off. “It all happened pretty quick.” RR5:
24-25. Mr. Tomberlin nevertheless offered his view that the shooting was an
accident (RR5: 32).

The aftermath. Following the fatal shooting, appellant dragged Mr. Bi’s
body into the hallway. RR4: 137-38. An official with Potter County Fire Rescue
discovered Mr. Bi’s body in a burning vehicle north of Amarillo later that afternoon.
RR3: 180. Crime scene investigators found no knife. RR5: 64. Investigators
connected appellant to the crime through a source who identified appellant as the
possible owner of the slot house. RR3: 138.

Salvador Rodriguez, who shared a jail cell with appellant for three months,
testified that he told appellant that his conviction for a shooting had been reversed
based on his self-defense claim. This prompted appellant to tell his own story: “...

he said that a guy went there to where he was at, his house, an argument came, and
he pulled a knife. He said he seen a knife and he got scared and shot him.” RR5: 73.

The jury charge. The jury charge instructed the jury on multiple offenses
and defenses. The alternative charges were murder and knowing or reckless deadly
conduct. The defensive instructions were on self-defense and defense of a third
person. Further instructions covered the use of deadly force in self-defense and the
presumption of reasonableness under specified circumstances. CR 128-134.
Before delivering the charge, the trial court asked if either side had any
additions or objections. Both sides reported, “No your Honor.” RR6: 6.