1. “Whether an attorney provides ineffective assistance when he admits in an affidavit that he failed to interview any potential mitigation witnesses, he made conclusory assumptions about what those witnesses might know about appellant’s life, and his decision not to interview any potential witnesses was not based on trial strategy. (C.R. at 329-32, 334-59).”
2. “Whether trial counsel’s failure to investigate even a single avenue of mitigation means that appellant was constructively denied any defense at all in the penalty phase of his trial and therefore prejudice is presumed. (C.R. at 329-32, 334-59).”
3. “Whether the Court of Appeals erred by holding that because appellant used deadly force, rather than the threat of deadly force, he was not entitled to an instruction on self-defense pursuant to Tex. Pen. Code § 9.04. (VI R.R. at 171- 74; XII R.R. at 240).”
Pham was convicted of murdering Mai ten years after shooting him in a restaurant. Before the shooting, the two had a history of violent interactions. Pham testified that when he saw Mai in the restaurant, Mai pulled out a gun. Pham then pulled his gun and shot Mai when Mai pointed his gun at him.
On appeal, Pham claimed that the trial court erred to deny his request for a threat-of-force instruction under Tex. Penal Code § 9.04. A majority of the court of appeals, citing Gamino v. State, 537 S.W.3d 507 (Tex. Crim. App. 2017), observed that the 9.04 threat instruction applies only when deadly force was not used. Here, because Pham used deadly force, as opposed to just threatening its use, he was not entitled to the instruction.
Next, Pham alleged he was denied effective assistance of counsel at punishment because his attorney failed to call mitigation witnesses. With his motion for new trial, Pham submitted several affidavits from family and friends who swore they had been available to testify. Though counsel said he had no strategy, he went on to explain that he didn’t call some of them because they would not have been good witnesses; he presumed that those who stayed in touch with him during his ten years as a fugitive and drug dealer would open the door to damaging evidence. As to Pham’s parents, counsel stated Pham had not kept in touch with them for ten years and, at the time of the trial, Pham wanted to protect them from “negative consequences.”
The majority affirmed the trial court’s denial of the motion. The majority concluded that counsel was not deficient. “Prioritizing appellant’s self-defense claim over the presentation of mitigation witnesses that had no knowledge of appellant’s current character, or possibly had knowledge of appellant’s drug-dealing activities, or possibly had helped appellant elude capture, is a reasonable strategic decision.” The dissent maintained that counsel was deficient stating “[s]trategy without investigation is not strategy at all.”
Addressing the lower court’s 9.04 ruling, Pham argues that he testified he displayed the gun to discourage an attack by Mai. This was not deadly force. Further, the omission of the instruction allowed the State to exploit the lawful display by arguing that Pham provoked the difficulty.
Pham quotes the dissent at length in taking issue with the majority’s resolution of his ineffective assistance claim. Counsel’s presumptions about what the uncalled witnesses would have said were conclusory. Like counsel, the majority assumes facts unknown to find counsel’s performance reasonable. Because counsel didn’t investigate, his decision was not strategic. And arguably, given counsel’s failures, Pham was constructively denied any defense at punishment. “The painful and joyful parts of Pham’s childhood, his family’s story in escaping the harsh and violent world of Vietnam, and his interactions and relationships with family, friends, and community members are all relevant pieces of information that the jury could have considered.”