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Click here for the full text of this decision FACTS:A series of altercations occurred on the evening of July 30, 2003, and the early morning of July 31, 2003. Two groups of people arrived at Star Karaoke in Houston. One group included Vu Anh Le, Le’s girlfriend, a man nicknamed Flavor, and Flavor’s girlfriend. The other group included Ty Nguyen, Nguyen’s girlfriend, Dat Dao, Thong Dao and Nien Kao. In the lobby of Star Karaoke, witnesses saw Le and Flavor playfighting against each other with firearms. One gun was described as black and the other as silver or black and silver. Later, in one of the karaoke rooms, Nguyen’s girlfriend and Flavor’s girlfriend got into a physical altercation. Witnesses from Nguyen’s group observed Le pull a silver gun from his waistband and fire it into the ceiling. One of those witnesses, Dat Dao, then saw Le place a silver gun in his pants. The club manager told everyone to leave. Outside, the two women continued their physical altercation. Nguyen tried to stop the fight. At this point, there was some disagreement as to what occurred. Witnesses stated that Le drew a firearm and either aimed it at the back of Nguyen’s head or held it out while telling Flavor to leave and go home. Without firing the gun, Le walked away. Witnesses stated that Flavor then walked over to Nguyen and shot him in the head, killing him. A bullet also hit another person at the scene. Flavor then fled the scene. Police subsequently arrived and discovered a silver gun in the trash can of the men’s restroom of Star Karaoke. The police found a cartridge case whose location suggested that it was the case from the bullet that went through the ceiling of the karaoke room, where a hole was found. Police did not recover any DNA evidence or fingerprints from the gun. Authorities indicted Le on a charge of being a felon in possession of a firearm, and the case went to trial. During deliberations, the jury sent a note to the judge asking: “Are we allowed to consider the statements made to police as evidence, or only to impeach statements made in court?” Le argued that the judge should simply instruct the jurors to read the instructions that were given to them before they retired to their deliberations. Instead, the judge gave the jury various instructions on the rules of evidence which dealt with bases on which to treat the testimony as substantive, rather than only impeachment, evidence. Le renewed his objection to the supplemental jury instructions. Le was convicted of being a felon in possession of a firearm. Because there was no physical evidence tying Le to the firearm, the government’s case relied on the testimony of various individuals who saw him with a gun during the evening. Le appealed, raising four points of error. HOLDING:Affirmed. On appeal, Le challenged the supplemental jury instructions on two grounds: 1. that the district court gave impermissibly government-favored instructions; and 2. that the district court failed to refer to the original instructions. The theory of the defense, the court stated, was that the witnesses were lying, because they had feelings of acrimony towards Le. To discredit these witnesses, Le attempted to show inconsistencies between their testimony to the police and their testimony at trial. Accordingly, Le argued that by giving supplemental instructions that referred only to the admissibility of these statements as substantive evidence, the district court prejudiced his defense by directing the jury’s attention away from the impeachment value of these statements. The supplemental jury instructions, the court stated, did not prejudice Le’s defense. While the emphasis of the supplemental instructions was admittedly on bases for admission of testimony that did not favor Le’s theory of the case, the jury question indicated by its own terms that the jury already understood that this testimony was admissible for impeachment purposes. Next, the court noted that a reference to the original jury instructions is necessary when the supplemental instructions “taken alone might leave an erroneous impression in the minds of the jury.” In Le’s case, however, the jury’s question itself indicated that it understood that the previous statements were admissible to show impeachment. The failure to refer to the original instructions while giving the supplemental instructions did not prejudice the defendant, the court concluded. The court reviewed for abuse of discretion the district court’s denial of a motion for a mistrial based on the admission of prejudicial testimony. During the trial, Le’s parole status was mentioned three times. Le’s counsel declined the opportunity for the court to direct the jury to ignore the statements, stating that this would draw even more attention to the information. Le argues that the district court erred in denying his motion for a mistrial after the government mentioned that he was on parole when he committed the offense. The court found that the three references were a very small part of the trial. The jury heard testimony from various witnesses that Le brandished a firearm on at least two occasions during the evening, and the police recovered a gun from a location Le was seen near after the altercations occurred. Furthermore, the court noted that the reference to Le’s parole status during opening statements went by without objection. At this point, “the jury had the information,” the court stated. Nonetheless, the court sustained a later objection. Le’s attorney, however, declined a curative instruction regarding the closing argument statement. The court found that the references to Le’s parole status did not have a “substantial impact upon the jury’s verdict.” Next, the court found that the evidence at trial substantiated the conclusion that Le committed an attempted aggravated assault, as he pointed the gun at Nguyen in the middle of a heated situation in which two people, one from each of their respective groups, were fighting. As a result, the court rejected Le’s argument that the four-level enhancement under U.S. Sentencing Guideline �2K2.1(b)(5) was improper. Finally, the court found that the district court did not err in determining that Le’s base offense level should be 20 under �2K2.1(a)(4)(A), because “the defendant committed any part of the instant offense subsequent to sustaining one felony conviction of . . . a controlled substance offense.” Le’s previous conviction, the court stated, was for “Manufacture or Delivery of Substance in Penalty Group 2″ under Texas Health & Safety Code �481.113(a). OPINION:Clement, J.; Jones, C.J., and Higginbotham and Clement, JJ.

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