Tyra Ann Whitney v. State

02-11-472-CR

COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-11-00472-CR

Tyra

Ann Whitney

v.

The

State of Texas

§

§

§

§

§

From Criminal District

Court No. 1

of

Tarrant County ( 1217006D )

February

28, 2013

Opinion

by Justice Gabriel

(p)

JUDGMENT

This

court has considered the record on appeal in this case and holds that there was

no error in the trial court’s judgment. It is ordered that the judgment of the

trial court is affirmed.

SECOND DISTRICT COURT OF APPEALS

By_________________________________

Justice Lee Gabriel

COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-11-00472-CR

Tyra Ann Whitney

APPELLANT

V.

The

State of Texas

STATE

----------

FROM Criminal

District Court No. 1 OF Tarrant COUNTY

----------

MEMORANDUM

OPINION [1]

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Introduction

Appellant

Tyra Ann Whitney appeals her conviction for murder, contending in three issues that

the trial court erred by (1) denying co-counsel’s active participation

during trial, (2) issuing a no-duty-to-retreat instruction in the jury charge,

and (3) denying a mistrial after sustaining an objection to the State’s

closing argument. We affirm.

Background

Facts and Procedural History

Appellant

killed her daughter Tashira’s boyfriend with a hammer. Tashira and the deceased

often quarreled, at times violently. During their last argument, Tashira

called Appellant, who then drove to Tashira’s apartment. A neighbor saw Appellant

climb out of her van and walk to the apartment holding a yellow handled hammer.

The

deceased was gathering his belongings in the bedroom when the Appellant came

through the unlocked apartment door. She and the deceased started arguing and

continued to do so after Tashira closed the bedroom door between them. When

the door reopened the deceased approached Appellant. It is unclear from the

record whether he intended to attack Appellant or to escape past her out the

front door. Before he could do either, Appellant threw a cup of bleach-water into

his face. He fell facedown to the floor, and Appellant struck him in the back

of the head with the hammer.

As

Appellant walked back to her van, the neighbor who had seen her arrive noticed

that the hammer in her hand had blood on it. Appellant explained as she left,

“I told you I was gonna kill that n[. . . ]––if he ever laid a hand on my daughter

again.”

The

deceased died from his injuries shortly thereafter, and the State charged

Appellant with murder.

Appearing

before a magistrate, Appellant submitted a written election-of-counsel form,

with supporting affidavit of indigency attached, requesting a court-appointed

lawyer. The magistrate found Appellant indigent and appointed attorney William

Harris (“Counsel”) for her defense.

Appellant’s

daughter Tashira had given two statements to the police: one oral, recorded in

a detective’s vehicle, and the other written at the police station. But she did

not talk with anyone from the district attorney’s office before trial. Four or

five times, however, Tashira met with the defense, to discuss her testimony––the

last time in the week before trial.

A

visiting judge presided over Appellant’s trial. On the first day during jury

selection, she introduced Counsel and Wes Bearden to the venire as the

attorneys that represented Appellant. Counsel conducted Appellant’s portion of

voir dire, and after empanelling a jury, the trial court recessed until the

morning.

The

next day, outside the jury’s presence, the visiting judge reported that the

elected judge of the trial court had instructed her not to allow Bearden to

actively participate in the trial because he had not been appointed as Appellant’s

counsel or co-counsel. The trial court noted, however, that Bearden could

remain in the courtroom and “assist” Counsel “in any fashion” other than “actively

questioning witnesses and making objections and things of that nature.” Counsel

objected to this arrangement and Appellant expressed her desire to have Bearden

fully participate under Counsel’s supervision. The trial court overruled the

objection but granted a running objection on the issue.

The

jury convicted Appellant of murder and, after the punishment phase, assessed

punishment at fifteen years’ confinement, finding that she had acted under the

immediate influence of sudden passion arising from an adequate cause. [2] The trial court

sentenced Appellant accordingly.

Denial

of Co-counsel

In

her first issue, Appellant contends that the trial court denied her

constitutional right to choose co-counsel to assist her court-appointed counsel

at trial. [3] Appellant cites Powell

v. Alabama , 287 U.S. 45, 53 , 53 S. Ct. 55, 58 (1932), for the

proposition that the Sixth Amendment right to the assistance of counsel

“includes the right of the accused to counsel of [her] choice if counsel is

retained or volunteers pro bono.” But this right to choose counsel does not extend

to defendants who have counsel appointed for them by the court. United

States v. Gonzalez–Lopez , 548 U.S. 140, 151 , 126 S. Ct. 2557, 2565

(2006); United States v. Benitez-Casas , 439 F.App’x 307, 308 (5th Cir.

2011); see Montejo v. Louisiana , 556 U.S. 778, 784 , 129 S. Ct.

2079, 2084 (2009) (“An indigent defendant has no right to choose his counsel[.]”)

(citing Gonzalez–Lopez , 548 U.S. at 151 , 126 S. Ct. 2557 ).

The

United States Supreme Court has not addressed the specific issue of whether the

Sixth Amendment guarantees any right for an indigent defendant to choose co-counsel

to assist counsel that has been appointed by the trial court. But in Trammell ,

this court resolved the issue adversely to Appellant’s position. 287 S.W.3d at

343–44.

In

Trammell , we noted that the Supreme Court has considered whether “a trial

court’s erroneous deprivation of a criminal defendant’s choice of counsel

entitles him to a reversal of his conviction.” Id. at 342 (citing Gonzalez–Lopez ,

548 U.S. at 142 , 126 S. Ct. at 2560 ). [4] Analyzing the

argument that the trial court had denied the defendant his Sixth Amendment

right to “paid counsel of his choosing,” the Supreme Court noted that it had

previously held that “a defendant who does not require appointed counsel

[has the right] to choose who will represent him.” Id. (citing Gonzalez–Lopez ,

548 U.S. at 144 , 126 S. Ct. at 2561 ) (emphasis added)). It then reversed

the conviction because it decided that the trial court violated the appellant’s

right to counsel of his choice, which it held was a structural error that required

no showing of harm. Id. (citing Gonzalez–Lopez , 548 U.S. at

144–52, 126 S. Ct. at 2561–66).

But

the Supreme Court explicitly limited its holding in Gonzalez–Lopez to cases

in which defendants do not have court-appointed counsel: “Nothing we have said

today casts any doubt or places any qualification upon our previous holdings

that limit the right to counsel of choice . . . . [T]he right to counsel of

choice does not extend to defendants who require counsel to be appointed for

them. ” Id. at 343 (citing Gonzalez–Lopez , 548 U.S. at 151 ,

126 S. Ct. at 2565 (emphasis added)); see United States v. Rincon ,

223 F.App’x 331, 331 (5th Cir. 2007) (“ Gonzalez–Lopez clearly

distinguishes itself from situations involving appointed counsel.”); see

also Caplin & Drysdale, Chartered v. United States , 491 U.S. 617, 624 ,

109 S. Ct. 2646, 2652 (1989) (stating that the Sixth Amendment “guarantees

defendants in criminal cases the right to adequate representation, but those who

do not have the means to hire their own lawyers have no cognizable complaint so

long as they are adequately represented by attorneys appointed by the courts”).

Similarly,

Texas courts, including ours, have specifically held that an indigent defendant

does not have a right to the counsel of his own choosing. See Trammell ,

287 S.W.3d at 343–44; Maes v. State , 275 S.W.3d 68, 71 (Tex. App.––San

Antonio 2008, no pet.) (“A defendant does not have the right to choose

appointed counsel, and unless he waives his right to counsel and chooses to

represent himself, or shows adequate reasons for the appointment of new

counsel, he must accept court-appointed counsel.”); Long v. State , 137

S.W.3d 726, 735 (Tex. App.––Waco 2004, pet. ref’d); Garner v. State , 864

S.W.2d 92, 98 (Tex. App.––Houston [1st Dist.] 1993, pet. ref’d) (indicating

that an indigent defendant “must accept the counsel appointed by the court”); see

also United States v. Hughey , 147 F.3d 423, 428 (5th Cir.) (relating that

the “Sixth Amendment right to counsel of choice is limited, and protects only a

paying defendant’s fair or reasonable opportunity to obtain counsel of the

defendant’s choice”), cert. denied , 525 U.S. 1030 (1998).

Also,

Texas cases expressing that a defendant’s Sixth Amendment rights are protected

when he has effective assistance from either retained or appointed counsel

weigh against Appellant’s position. Trammell , 287 S.W.3d at 343; see

Malcom v. State , 628 S.W.2d 790, 791 (Tex. Crim. App. [Panel Op.] 1982)

(stating that once “the court has appointed an attorney to represent the

indigent defendant, the defendant has been accorded the protections provided

under the Sixth and Fourteenth Amendments”); Montemayor v. State , 55

S.W.3d 78 , 88–89 (Tex. App.––Austin 2001, pet. ref’d) (holding that the trial

court properly removed the defendant’s appointed counsel when the defendant

retained other counsel); Ex parte Williams , 870 S.W.2d 343, 348 (Tex. App.––Fort

Worth 1994, pet. ref’d) (reciting that a defendant “has the right to have

counsel appointed if retained counsel cannot be obtained”) (quoting Strickland

v. Washington , 466 U.S. 668, 685 , 104 S. Ct. 2052, 2063 (1984)); Hazelwood

v. State , 838 S.W.2d 647, 649 (Tex. App.––Corpus Christi 1992, no pet.)

(explaining that an accused has the right “to be represented by either

retained or court-appointed counsel”) (emphasis added).

Accordingly,

we hold that the trial court did not violate the Sixth Amendment when it

excluded Bearden from actively participating as co-counsel alongside

Appellant’s court-appointed counsel, and we overrule Appellant’s first issue. See

Gonzalez–Lopez , 548 U.S. at 151 , 126 S. Ct. at 2565 ; Trammell ,

287 S.W.3d at 343–44.

No-Duty-to-Retreat

Instruction

In

her second issue, Appellant contends that the trial court erred by including in

its charge to the jury an instruction that Appellant concedes tracks a penal

code provision regarding a duty to retreat. She complains of the following instruction:

A defendant who has a right to be present at the location

where the force is used, who has not provoked the person against whom the force

is used, and who is not engaged in criminal activity at the time the force is

used is not required to retreat before using force in self-defense.

Although

Appellant concedes that this instruction tracks the penal code, see Tex.

Penal Code Ann. § 9.31 (e) (West 2011), she argues that because the

legislature eliminated the statutory duty to retreat in 2007, the trial court erred

by including this instruction in the charge because it implies that there is

a duty to retreat. In other words, Appellant argues that the charge was

erroneous because it “implied the existence of a non-existent duty.”

Prior

to September 1, 2007, section 9.32 of the penal code provided that the use of

deadly force was justified only “if a reasonable person in the actor’s

situation would not have retreated.” See Act of May 16, 1995, 74th

Leg., R.S., ch. 235, § 1, 1995 Tex. Gen. Laws 2141 , 2141–42 (amended 2007)

(current version at Tex. Penal Code Ann. § 9.32 (West 2011)). However,

effective September 1, 2007, the 80th Legislature amended the statute to delete

existing language regarding a general duty to retreat and to add new language

specifying the circumstances under which a person does not have a duty

to retreat. Morales v. State , 357 S.W.3d 1 , 4–5 (Tex. Crim. App. 2011).

The legislature deleted from penal code section 9.32(a)(2) the language “if a

reasonable person in the actor’s situation would not have retreated; and,” and

it added the following that now appears in section 9.32(c):

A person who has a right to be present at the location

where the deadly force is used, who has not provoked the person against whom

the deadly force is used, and who is not engaged in criminal activity at the

time the deadly force is used is not required to retreat before using deadly

force as described by this section.

Act

of Mar. 20, 2007, 80th Leg., R.S., ch. 1, § 3, secs. 9.31, 9.32, 2007

Tex. Gen. Laws 1 , 2 (current version at Tex. Penal Code Ann. § 9.32 (c) (West

2011)).

Section

9.31(e) was added at the same time and differs from section 9.32(c) only by

omitting “deadly” before each of the four appearances of the word “force.” It

reads as follows:

A person who has a right to be present at the location

where the force is used, who has not provoked the person against whom the

force is used, and who is not engaged in criminal activity at the time the

force is used is not required to retreat before using force as described by

this section.

Id . at

1 (current version at Tex. Penal Code Ann. § 9.31 (e) (West 2011)). [5]

Appellant’s

characterization of the duty to retreat as “non-existent” may be too strong. In

Morales , the court of criminal appeals addressed the changes made to the

self-defense statute by the 80th Legislature, specifically, the no-duty-to-retreat

provisions at issue here. 357 S.W.3d at 4–6. One of Morales’s grounds for

review asked, “Whether the 2007 amendment to the self-defense statute

eliminated the duty to retreat in a self-defense case.” Id . at 4, n.4.

Although the opinion does not specifically address this question, it implies

that the duty to retreat is not, in Appellant’s words, “non-existent.” First,

the court acknowledged that when the provisions apply, the defendant has no

duty to retreat. Id . at 5. Then, in discussing the “no duty to retreat

provisions,” the court stated that when “these provisions do not apply, the

failure to retreat may be considered in determining whether a defendant

reasonably believed that his conduct was immediately necessary to defend himself

or a third person.” [6] Id . Further, the

court wrote, when the provisions do not apply, the prosecutor

may argue the failure to retreat as a factor in

determining whether the defendant’s conduct really was immediately necessary. Or

if a fact issue is raised regarding the applicability of the provisions that

specifically negate a duty to retreat, the prosecutor can argue that the facts

do not satisfy the provisions and then argue the failure to retreat as a factor

relevant to the defensive issue.

Id . We

conclude, therefore, that the report of the death of the duty to retreat is

exaggerated.

And

as the State points out, Appellant cites no authority for her position. But

even if an instruction setting out the circumstances under which a person using

force (or deadly force) has no duty to retreat necessarily implies the

existence of such a duty, we do not hold it error for the trial court to have included

the instruction in its charge. The court of criminal appeals has held that a

trial court will not be held to have erred in its jury charge by tracking the

law as set out by the legislature. Martinez v. State , 924 S.W.2d 693,

699 (Tex. Crim. App. 1996); Riddle v. State , 888 S.W.2d 1, 8 (Tex. Crim.

App. 1994), cert. denied , 514 U.S. 1068 (1995). As stated above,

Appellant concedes that the complained-of instruction tracked the law as set

out by the legislature.

Moreover,

the legislature added the language of which Appellant complains in the very same

act in which it deleted the language that she calls the statutory basis for a

duty to retreat. See Act of Mar. 20, 2007, 80th Leg., R.S., ch. 1,

§ 3, secs. 9.31, 9.32, 2007 Tex. Gen. Laws 1 , 1–2, supra . What we

take from that is that the legislature intended to eliminate a defendant’s

burden to affirmatively establish that he or she retreated before employing

force (or deadly force) and to stress the set of circumstances under which a

defendant could not be held to have such a duty. We refuse to infer,

therefore, that the legislature intended to abolish the duty to retreat while

at the same time implying its continued existence. Absent any controlling

authority to the contrary, Appellant’s position is not persuasive and we

overrule her second issue. See Martinez , 924 S.W.2d at 699 ; Riddle ,

888 S.W.2d at 8 .

Jury

Argument

In

her third and final issue, Appellant contends that the prosecutor improperly

struck at her over the shoulders of defense counsel during closing argument

when she argued that Tashira told the police on the day of the murder something

different than what she told the jury “after four to five visits at the defense

attorney’s office.” The trial court sustained Appellant’s objection,

instructed the jury to disregard, and denied Appellant’s motion for mistrial.

The issue, then, is whether the trial court abused its discretion by not

granting a mistrial. See Archie v. State , 340 S.W.3d 734 , 738–40 (Tex.

Crim. App. 2011); Hawkins v. State , 135 S.W.3d 72, 77 (Tex. Crim. App. 2004);

Hunt v. State , No. 02-11-00101-CR, 2012 WL 858613 , at *2 (Tex. App.––Fort

Worth Mar. 15, 2012, pet. ref’d) (mem. op., not designated for publication).

We

review a trial court’s ruling on a motion for mistrial for an abuse of

discretion. Hawkins , 135 S.W.3d at 77 ; Hunt , 2012 WL 858613 , at

*2. When the refusal to grant a mistrial follows an objection for improper

jury argument, we balance three factors to determine whether the trial court

abused its discretion: (1) the severity of the misconduct (prejudicial

effect), (2) curative measures, and (3) the certainty of conviction

absent the misconduct. Archie , 340 S.W.3d at 739 ; Hawkins , 135

S.W.3d at 77 ; Mosley v. State , 983 S.W.2d 249, 259 (Tex. Crim. App.

1998) (op. on reh’g), cert. denied , 526 U.S. 1070 (1999); Hunt , 2012

WL 858613 , at *2. Only in extreme circumstances, when the prejudice caused by

the improper argument is incurable, that is, “so prejudicial that expenditure

of further time and expense would be wasteful and futile,” will a mistrial be

required. Hawkins , 135 S.W.3d at 77 ; see Archie , 340 S.W.3d 739

(“Mistrial is . . . appropriate . . . when . . . the objectionable events ‘are

so emotionally inflammatory that curative instructions are not likely to

prevent the jury from being unfairly prejudiced against the defendant.’”)

(citing Young v. State , 137 S.W.3d 65, 71 (Tex. Crim. App. 2004)). In

most cases, an instruction to disregard will cure the alleged harm. Wesbrook

v. State , 29 S.W.3d 103, 115 (Tex. Crim. App. 2000), cert. denied ,

532 U.S. 944 (2001).

In

examining the first factor, we consider the severity or prejudicial effect of

the misconduct. See Archie , 340 S.W.3d at 739 ; Hawkins , 135

S.W.3d at 77 . Here is the portion of the State’s closing argument that Appellant

complains struck at her over her counsel’s shoulders:

And what’s the testimony then? He [the deceased] is

gathering up his property to leave. Tashira says he opens the door, and the

defendant says, her mother, she tells Detective O’Brien immediately after this

happens, not a year later, not after four to five visits at the defense attorney’s

office, she says her mother says, “Go ahead and hit me.”

The

trial court sustained Appellant’s objection. But it may have done so in an

abundance of caution because we are not entirely convinced that the comment was

improper, let alone severe or all that prejudicial.

Permissible

jury argument generally falls into one of four areas: (1) summation of the

evidence; (2) reasonable deduction from the evidence; (3) an answer

to the argument of opposing counsel; or (4) a plea for law enforcement. Davis

v. State , 329 S.W.3d 798, 821 (Tex. Crim. App. 2010), cert. denied ,

132 S. Ct. 128 (2011); Cannady v. State , 11 S.W.3d 205, 213 (Tex.

Crim. App.), cert. denied , 531 U.S. 850 (2000). When a prosecutor makes

uninvited and unsubstantiated accusations of improper conduct directed toward a

defendant’s attorney, in an attempt to prejudice the jury against the

defendant, courts refer to this as striking a defendant over the shoulders of

his counsel. Phillips v. State , 130 S.W.3d 343, 355 (Tex. App.––Houston

[14th Dist.] 2004, pet. ref’d) (op. on reh’g), aff’d at 193 S.W.3d 904

(Tex. Crim. App. 2006).

Argument

that strikes at a defendant over the shoulders of defense counsel is improper.

Davis , 329 S.W.3d at 821 ; Wilson v. State , 7 S.W.3d 136, 147

(Tex. Crim. App. 1999); Dinkins v. State , 894 S.W.2d 330, 357 (Tex.

Crim. App.), cert. denied , 516 U.S. 832 (1995). This prohibition

protects the defendant from improper prosecutorial character attacks on defense

counsel. Davis v. State , 268 S.W.3d 683, 713 (Tex. App.––Fort Worth

2008, pet. ref’d).

A

prosecutor risks improperly striking at a defendant over the shoulders of

counsel when the argument refers to defense counsel personally and when the

argument explicitly impugns defense counsel’s character. Mosley , 983 S.W.2d

at 259 ; Davis , 268 S.W.3d at 712 . For example, a prosecutor

impermissibly strikes at a defendant over counsel’s shoulders when the

prosecutor argues that defense counsel manufactured evidence, suborned perjury,

accepted stolen money, or represented criminals. See Phillips , 130

S.W.3d at 355 ; Washington v. State , 822 S.W.2d 110, 119 (Tex. App.––Waco

1991), rev’d on other grounds , 856 S.W.2d 184 (Tex. Crim. App. 1993); see

also Fuentes v. State , 664 S.W.2d 333, 335 (Tex. Crim. App. [Panel Op.]

1984) (prosecutor may not accuse defense counsel of bad faith or insincerity or

discuss counsel’s “usual antics”); Anderson v. State , 525 S.W.2d 20, 22

(Tex. Crim. App. 1975) (arguments that criticize defense counsel, including

that defense counsel “did not have guts enough” to argue innocence of his

client and request for more time to argue because of defense counsel’s “frivolous

objections” were improper); Jones v. State , 151 Tex. Crim. 115, 119 , 205

S.W.2d 590, 592 (1947) (prosecutor argued that men had been “cleared of murder

by the machinations of” defense counsel’s “great” and “shrewd mind” that would

“take care of everything and furnish the evidence”).

An

argument that is directed at the defendant but not personally at defense

counsel is not a strike over the shoulders of counsel. See Davis ,

329 S.W.3d at 823 . For an improper jury argument to mandate reversal, it must

be extreme, violate a mandatory statute, or inject new facts into the record. Brandley

v. State , 691 S.W.2d 699 , 712–13 (Tex. Crim. App. 1985). The standard of

review for a trial court’s ruling on an objection asserting improper jury

argument is abuse of discretion. See Lemon v. State , 298 S.W.3d 705,

707 (Tex. App.––San Antonio 2009, pet. ref’d); York v. State , 258 S.W.3d

712, 717 (Tex. App.––Waco 2008, pet. ref’d).

We

do not read the complained-of portion of the prosecutor’s remarks as an attack on

counsel’s character or a criticism of his defense of Appellant. See Mosley ,

983 S.W.2d at 259 . Nor did the prosecutor accuse counsel of any wrongdoing or

impropriety. See id.; Fuentes , 664 S.W.2d at 335 ; Phillips , 130

S.W.3d at 355 . Rather, the prosecutor’s argument pointed out––as the record

amply demonstrated––that Tashira’s original statements to police differed from

what she testified to at trial. Although it would not be unreasonable to infer

that she changed her story after consulting with defense counsel, it does not

necessarily follow that she did so at counsel’s direction. Nor did the

prosecutor argue that counsel directed her to change her story. She merely

argued that the story changed between the time Tashira told it to the police on

the day of the murder and when she told it to the jury and that in between the

two she had visited with the defense. And, again, the record supports that

argument.

The

cases showing strikes over the shoulders of counsel have been more directly

aimed at counsel than this. See Mosely , 983 S.W.2d at 259 ; Fuentes ,

664 S.W.2d at 335 (prosecutor argued defense counsel acted “in bad faith like

usual” and knew purported evidence of police misconduct was “a bunch of garbage”);

Wilson v. State , 938 S.W.2d 57, 58 (Tex. Crim. App. 1996) (prosecutor

argued that “[defense counsel] wishes . . . that you turn a guilty man free . .

. because he doesn’t have the obligation to see that justice is done”); overruled

on other grounds by Motilla v. State , 78 S.W.3d 352 , 356–57 n.26 (Tex.

Crim. App. 2002); Anderson v. State , 525 S.W.2d 20 , 21–22 (Tex. Crim. App.

1975) (State accused defense attorneys of lying); Phillips , 130 S.W.3d

at 356–57 (State’s arguments in a sexual assault of a child case that the

defense—“nailed [the complainant] up on a cross,” “nail[ed her] to a cross,”

and “called her whore”—were targeted at defense counsel’s handling of the case

and made toward counsel personally).

Nevertheless,

largely because the trial court sustained the objection, we will assume that

the prosecutor’s remark was improper. Skipping for the time being the first

factor for determining whether the trial court erred by refusing a mistrial

based on improper jury argument (severity or prejudicial effect), under the

second factor, we review the character of the measures adopted to cure the

misconduct. See Archie , 340 S.W.3d at 739 ; Hawkins , 135 S.W.3d

at 77 . The law generally presumes that instructions to disregard and other

cautionary instructions will be duly obeyed by the jury. Archie , 340

S.W.3d at 741 ; Gardner v. State , 730 S.W.2d 675, 696 (Tex. Crim. App.), cert.

denied , 484 U.S. 905 (1987). And generally, a trial court cures any error

from an improper jury argument when it instructs the jury to disregard the

comment. See Wilkerson v. State , 881 S.W.2d 321, 327 (Tex. Crim. App.);

cert. denied , 513 U.S. 1060 (1994); Phillips , 130 S.W.3d at 355 .

In this case, the trial court sustained the objection to the prosecutor’s

argument, immediately ordered the jury to disregard it, and the prosecutor did

not revisit this line of argument. The second factor, therefore, weighs in

favor of the trial court’s ruling.

Returning

to the first factor, we conclude that the remark was not severe or

prejudicial. As we have said, it appears to us that the gist of the argument

was directed at Tashira and her having changed her story and that argument was

supported by the record. During the State’s examination of Tashira, the

prosecutor pointed out several instances in which Tashira’s statements to the

police differed from her testimony at trial. The prosecutor’s remark reminding

the jury of that fact did not inject anything into the trial of which the jury

was previously unaware. Even assuming that the prosecutor’s remark was

improper, we hold that it was not severe or unduly prejudicial. The first

factor weighs against Appellant’s position.

Lastly,

under the third factor, the reviewing court looks to the certainty of

conviction absent the misconduct. See Archie , 340 S.W.3d at 739 ; Hawkins ,

135 S.W.3d at 77 . We find the evidence to support Appellant’s conviction to be

fairly compelling. In our view, the evidence supporting the conviction was

strong, and the jury would almost surely have convicted Appellant regardless of

the prosecutor’s comment during her closing argument.

The

magnitude of the prejudice caused by the prosecutor’s remark was not so great

that a jury would necessarily have discounted the trial court’s instruction to

disregard it. It seems unlikely that the jury would have ignored the trial

court’s timely instruction and convicted Appellant, not on the compelling

evidence introduced against her, but because the prosecutor implied that

Appellant’s daughter changed her testimony after consulting with defense

counsel. Under these circumstances, assuming without deciding that the

prosecutor’s comments were improper, we hold that the trial court did not abuse

its discretion by denying Appellant’s request for a mistrial. See Archie ,

340 S.W.3d at 742 ; Wilkerson , 881 S.W.2d at 327 . Accordingly, we

overrule Appellant’s third issue.

Conclusion

Having

overruled all of Appellant’s issues, we affirm the judgment of the trial court.

LEE GABRIEL

JUSTICE

PANEL:

LIVINGSTON,

C.J.; MCCOY and GABRIEL, JJ.

PUBLISH

DELIVERED: February 28,

2013

[1] See Tex. R. App. P. 47.4.

[2] Murder is a second-degree

felony if, at the punishment phase, the defendant proves by a preponderance of

the evidence that she acted under the influence of sudden passion arising from

an adequate cause. Tex. Penal Code Ann. § 19.02 (d) (West 2011). The penal

code defines “sudden passion” as “passion directly caused by and arising out of

provocation by the individual killed” arising “at the time of the offense” and

“not solely the result of former provocation.” Id . § 19.02(a)(2).

“‘Adequate cause’ means cause that would commonly produce a degree of anger,

rage, resentment, or terror in a person of ordinary temper, sufficient to

render the mind incapable of cool reflection.” Id . § 19.02(a)(1).

[3] Because she does not argue

that our state constitution or any statute provides greater protection than the

Sixth Amendment of the United States Constitution, we treat Appellant’s first

issue solely as a Sixth Amendment claim. See Trammell v. State , 287

S.W.3d 336 , 342 n.12 (Tex. App.––Fort Worth 2009, no pet.).

[4] In Gonzalez–Lopez ,

the federal trial court had denied pro hac vice admission to the defendant’s

desired out-of-state retained counsel, and it had refused to allow that counsel

to have contact with defendant’s local counsel during trial; it even ordered a

United States Marshal to sit between the two. Id . (citing Gonzalez–Lopez ,

548 U.S. 142–43, 126 S. Ct. at 2560 ).

[5] In conceding that the

instruction tracks the penal code, Appellant cites section 9.32(c). Actually,

the court’s charge more closely tracks section 9.31(e). But given the

similarity of the two provisions––9.32(c) refers to “deadly force” whereas

9.31(e) refers only to “force”––and given that neither side has made an issue

of the trial court’s using language from 9.31(e) as opposed to 9.32(c), the

distinction between the two statutes is not germane to our disposition of this

appeal.

[6] See Tex. Penal Code

Ann. § 9.31 (a) (force is justified “when and to the degree the actor

reasonably believes the force is immediately necessary to protect” against

unlawful force), § 9.32(a)(2) (“when and to the degree the actor

reasonably believes the deadly force is immediately necessary” to protect

against deadly force or to prevent the imminent commission of certain crimes).