## In t he Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06

- 23

- 00107

- CR

CHARLES JEROME CARTER , Appellant

V. THE STATE OF TEXAS , Appellee

On Appeal from the 5th District Court Bowie County, Texas Trial Court No. 21F0222

- 005

Before Stevens , C.J., van Cleef and Rambin , JJ. Memorandum Opinion by Chief Justice Stevens2 

### ME MORANDUM OPINION
A Bowie County jury convicted Charles Jerome Carter of murder

. After finding the State’s punishment enhancement allegations true, the jur y assessed a sentence of life imprisonment an d a $10,000.00 fine. On appeal, Carter argues that his trial counsel rendered ineffective assistance because he failed to request instructions for self

- defense and a lesser

inclu ded offense du ring guilt/innoce n ce . Carter also argues that , during punishment, his counsel should have objected to the lack of any presentment or plea to the punishment

- enhancement allegations and should have requested a sudden

- passion instruction

. We find that Car ter cannot show th at his counsel was ineffective because he was not entitled to self

- defense or lesser

- included

- offense instruction s . We also find that Carter’s stipulation to the prior enhancement allegations removed any prejudice from the lack of a
pres entment and p lea t o the punishment

- enhancement allegations and that counsel was not ineffective by failing to request a sudden

- passion instruction. As a result, we affirm the trial court’s judgment. I. Standard of Review for Ineffective As sistance of Co unsel As m any cas e s have noted, the right to counsel does not mean the right to errorless counsel. Robertson v. State , 187 S.W.3d 475, 483 (Tex. Crim. App. 2006). “[T]o prevail on a claim of ineffective assistance of counsel, [the defendan t] must satisf y the two

- p rong[ed ] test set fort h in Strickland v. Washington , 466 U.S. 668, [687

– 88]

. . . (1984).” Ex parte Imoudu , 284 S.W.3d 866, 869 (Tex. Crim. App. 2009) (orig. proceeding). A failure to make a showing under3

either prong of the Strickland test de feats a cla im for i neffective assistance. Rylander v. State , 101 S.W.3d 107 , 110

– 11 (Tex . Crim. App. 2003). To prove ineffective assistance of his counsel, Carter must show that (1) trial counsel’s representation fell below an objective standard o f re asonablene ss , b a sed on prevailing professional norm s , and (2) there is a reasonable probability that the result of the proceeding would have been different but for trial counsel’s deficient performance. See Strickland , 466 U.S. at 687

– 95 ; Hern andez v. State , 72 6 S

. W.2d 53, 5 5

– 5 7 (Tex. Crim. App. 1986)

. A “ reasonable probability ” means a “ probability sufficient to undermine confidence in the outcome.” Strickland , 466 U.S. at 694. I I . The Evidence at Guilt/Innocence Officers from the Texarkana, Texa s, Police D e part ment (TTPD ) a n d the Texarkana, Arkansas, Police Department (TAPD) responded to an emergency at a Whataburger parking lot on January 12, 2021, at 11:25 a.m. The officers found twenty

- nine

- year - old Nic k Muldrow alone and unresp onsive in the driver’s s e a t of his blue Ca d i llac Deville next to a firearm and “a rather large bag of a green , leafy substance , ” later confirmed to be 977.56 grams of mar ihuana. Officers r emoved Muldrow from the ca r and discover ed that he had been shot in the chest and leg. Desp i te first aid t re a t ment, Muldrow did not survive his injuries. The TTPD and TAPD secured the crime scene and began speaking with witnesses. Joshua Guy spoke wit h Cody Harris, a TTPD serge ant , and said that he had seen an African

American ma le fire a gu n around l unch time

. According to Harris, Guy h ad witnessed a struggle in Muldrow’s car. Guy testified that someone had dropped a black suitcase and a cellphone on4

the gro und before dr iving away in a black sports utility vehicle (SUV)

. Offic ers located the suitcas e an d ce l l phone at the scene and secured them along with a cigarette butt found close by

. Amanda Temple , another eyewitness, spoke w ith TTPD D etective Craig B uster. Temple testified that, after hearing a gunshot , she witnes sed s omeone get out of Muldrow’s car an d get into a black Nissan or Chevrolet SUV with “two to three guys in the vehicle.” Temple said the bla ck SUV fled the parking lot immediately after the shooting. 1 Officers re covered video

s urveillance f

ootage from busi nesses in the area depicting Mul dro w ’s vehicle and the suspect vehicle. Video

- surveillance footage showed that , when Muldrow’s car pulled up close to the black SUV, s omeone exite d the SUV and entered Muldrow’s car. A few secon ds later, the same person h urriedly retur ned to the SUV, and it sp ed off. The surveillance footage showed that the suspect vehicle was a black Nissan Rogue. After M uldrow was trans ported to th e hospital, officers processed his vehicle. Joshua Jones, a TAPD officer, testif ied that the g un inside the car was a Smi t h & Wesson SD40 handgun with a .40 caliber cartridge case jammed inside

. Officers also foun d a bullet that ha d penetrated through t he driver’s side seat

. Aaron Lewis, an i nvestigator w ith the TTPD, conducted a firearm trace of the gun , which revealed tha t it had been purchased from Academy Sports + Outdoors by Bria Page , who lived in a ho use on Citation Street. Lewis then realized that Page had called TTPD a bout an hour after Muldrow’s murder to report her g un stolen. When TTPD O fficer Scott Eudy asked P age for the serial number of the gun, Page said that she would suppl y the information but never did.

1 Temple told off

icers that she b elieved one of the suspect s in the SUV was Marques Thompson. Ha r r i s testified that Thompson was arrested b ut was released after providing a solid alibi.5

Offi cer s obtained a search warrant for Page’s home. Buster testif ied that he and Jones executed the wa rrant and we re surprised when they saw a black N i s sa n Rogue parked at Page’s house

. Inside of the SUV, Jones found a spent .40 caliber cartridge case, like the one found in Muldrow’s car. Jones testi fied that they found a Smith & Wesson gun b ox in Page’s c loset and that the serial number on the box ma t c he d the serial number of the weapon recovered from Muldrow’s car. Buste r testified t hat he noticed a photograph of Page hugging her b oyfriend, an African

- American male who “appeared to be the s ame subject that was on the background lock screen of the ce l l ul ar device that was recovered f rom the crime scene.” Page identified h er boyfriend as Carter. Page test ified that she started dat ing Carte r in December 2020 and that he soon moved in wit h her. She sa id the SUV was her vehicle and that she had just p u r chase d a new white Cadillac for Carter for Chr istmas. Acco rding to Page, Carter had stayed out playing dice on the night before the shooting but returned home drunk in the early hou rs of Ja nu ary 12. Pag e testified that Carter was still asleep wh en sh e l e ft for work in the morni ng in h er SUV but t hat he was gone when she came home b efore lunch

. Page said she hung up the keys to the SUV and took the Cadillac back to work so she could event ua lly take it to be registered. Bonderick Nard, Carter’s

cous in a n d best frien d, called Page aft er lunch and told her to report her gun stolen. Page, who heard Carter, Nard’s brother Ikil Banks , a nd a baby in the background of the call , complied with Nar d’ s request. When Page returned home after wo rk, she noticed that Carter had packed his clothes and left. Page’s SUV was in her dr iveway , but Carter’s mother had the keys

.6

Later, Ca r ter call ed Page using Bank s ’s phone and asked her to meet h im in Little R ock, Arkansas. Page met Carter , B anks , a nd Nard , and the y we n t to Walmart to ge t Carter a new phone after he claimed his had been stolen. After spending the night at Carter’s grandmother’s ho use in Little R o ck, Page returned to Texar ka na , leaving Car ter behind

. That day, Carter told Page to cl ean out her SUV. Wh e n she did, she fou nd a shell cas ing in the floorboard of the back
seat but maintained that she still did not know Carte r had been involved in a murder. Phil l ip Duong, a forensic firearm and toolmarks examiner for the Tex as Department of Pub lic Safety Cr i me La boratory, test ified that the lab oratory received Page’s S mith & Wesson found in Muldrow’s vehicle, a magazine , t hree fired cartridge cas ing s, and two fir e d bullets. In Duong’s opinion, all of the cartr idges and bullets were fired from Page ’ s g un. E v en though f inge rprint analysis from the magazine of the firearm revealed Nard’s prints , officers locate d social media postings showing Car ter prominently disp l aying Page’s gun

. Brian Tribble, a detective with TAPD, testified that the phone le f t a t the sc e ne had an And roid identification number and “an email acc ount of . . . carterg10flat@gmail.com .” Harris testified that Carter’s photo was on th e phone’s background and that analysis of the phone when
compar ed to Muldrow’s phone showed several ca lls betwe e n C arte r and Mu ldrow leading up to the minutes before the murder. Analysis of Nard’s cellphon e showed t hat he had called Ca rt er’ s mother after the murder at 11:50 a.m. Ali sha Lagrini, a forensic scientist with the Texas Department of Public Safety Garl a n d Crime Labor ato ry, testified that Carter and Muldrow had both contributed to the DNA found on the cell phone and that Nard w as excl uded as a contributor of the DNA. DNA analysis also showed that Nard had smoked the cigarette left at the scen e .7

Criti c all y , Lagrini testified that a swab of Muldrow’s left hand fingernail clippings had a m ixture of DNA and that Carter was a po ss ible co ntributor to that DNA mixture

. At tr ial, the testimony of Carter’s family m embers was favorable to the State. Lashe rika A n de r son, Carter’s cousin who lived in Little Rock, testified that Carter called her while i n Little Rock to bo rrow a ph on e charger

. Accord ing to Anderson, Car ter told her the “details of what happe ned an d why he felt like he had to do it. ” Carter told An d ers on t hat he had met Muldrow “to do a drug exchange ” but that Muldrow reached for Ca rter’s money after Cart er got in to Muldrow’s car. A nderson testified , “ They got to tasseling. [Carter] told me he ended up shooti ng the guy twice, and that he dropped h i s phon e at the scene, and that’s why now he has this phone, and he was a sking for a charger. ” Anderson said that , “f ro m [he r] understanding, it was more of a self

- defense.” Stephanie Fulton, Cart er’ s aunt and Nard and Banks ’s mother, testified that sh e spoke to Carter a few days after the shooting. 2 According to Fulton, Carte r “ was kind of shaken up ” and

sa id that he had met Muldrow to “ d o a weed exchange ” but that Muldrow grabbed C ar ter and they started struggling. Fulton testified that Carter admi t t ed to sh ooti ng Muldrow , retrieving his money from Muldrow, and fle eing the scene in the SUV. Fulton said s he advised C arter to turn h imself in. After hearing this evidenc e, the jury convicted Carter of murder.

2 Nard, who sold drugs with Vance Brown, was later murdered by Brown.8

III. Counsel Was Not Ineffective in Fa i l ing to S eek Defensive Instructions During Guilt/Innocence Cart er argues that his co unsel rendered inef fe ctive assistance by failing to seek self

defense and lesser

- includ ed

- offense instructions. Because we conclude that Carter cannot meet the first S t r ickland pro ng, we disagree. Under the first Strickland prong, “ the defendant must pr ove, by a prepond er ance of the evidence, that there is . . . no plausible professional re ason for a specific act or omission.” Bone v. State , 77 S.W.3d 828, 836 (Tex. C r im. App . 20 02). We note that judicial scrutiny of counse l’s
per formance must be highl y deferential, an d “the defendant must o vercom e the presumption that, under the circums ta nces, the challenged action ‘might be considered sound trial strategy.’” Stric k l and , 46 6 U. S. at 689 (quoting Michel v. Louisiana , 350 U .S. 91, 101 (1955)). We apply a strong presump ti on that trial counsel was c ompetent and presume that counsel’s actio ns and decisions were reasonably professional and motivated by sound trial strate g y . Jack son v. State , 877 S.W.2d 768, 771 (Tex. Crim. App . 1994). Also, when an appell ate record is sil en t on why trial counse l fail ed to take certain actions, “the appellan t has failed to rebut the presumption that trial counsel’s decision was in some w a y

— be it conc eivable or not

— reasonable.” Mata v. State , 2 26 S.W.3 d 425, 431 (Tex. Crim. App. 2007); see Th ompson v. State , 9 S. W.3d 8 08, 814 (Tex. Crim. App. 1999). Here, the r ecord is silent as to why counsel did not object to the jury charge

. In light o f the ev iden ce presented at trial, we find it likely that counsel decided not to reques t the defensive i ns tructions Carter wish e d for because he reasonably determined that Ca rt er was not entitled to the m.9

A. Reasonable Counsel Could Have Found Self - Defense I n applica ble On the record before us, we find that Carter’s counse l could have reasonabl y determined that t he theory of self

- def e nse was not available to Carter (1) since he d id not meet the confession and avoidance doctrine and (2) since Muldrow did not u s e deadly for ce against Carter.

“ Confession and av oidance is a ju dicially imposed requi rement that requi re s defendants who asse r t a justification defense to admit, or at a mi ni mum to not deny, the charged conduct. ” Rodriguez v. State , 629 S.W.3d 229, 231 ( Tex. Cr im. App. 2021)

. Because it can justify th e commission of an offense, “ [s] elf

- d efense is a confe ss ion

- and

- avoidance def e nse requiring the defendant to admit his other wi se illegal conduct.” Jordan v. State , 593 S.W.3d 340, 343 (Tex. Crim. App. 202 0 ) (citin g Ju arez v. State , 308 S.W.3d 398, 404 (Te x. Crim. App. 2 010) (finding that a d efendant can not b ot h invoke self

- defense and flatly deny the charged conduct ). Here, Ca rter did not admit to any element of the offense. He suggested at trial that N a r d could hav e been the shooter since his fingerpri nts were found on the magazine. Even after his f amily ’s testimony, Carter cr o ss - examined them on whether they were trying t o protect Nard’s
memory. Carter’s closing argument, excerpted below, showed that C arter d id n ot even agree that he was at the scene : The state wo uld never be able to, and they hav en’t, s hown you Charles Cart e r -- showing Charles Carter holding a firearm on the date of January 12, 2021. They haven’t shown Charles Carter was at the sc e n e of th is m urder. They’ve shown you evidence of his cell phone being there, but not C harles Carte r. T he y presented no eviden c e, and I said this in the opening, of Charles Ca rter firing a firearm. And mos t importantly, they have not shown Charles Carte r committ ing any act leading to the death of Nicholas Muldrow.10

Gi ven that co unsel could have been i nstru ct ed by Cart er to deny e ach element of the offense, we find i t reasonable for counsel to hav e determined not to employ a confession

- and

- avoidance
strat e g y and, as a result, for counsel to have concluded that Carter co uld not see k a self

- defense instru ction

. Moreover, u nder Secti on 9.32 of the Texas Penal Code , Ca rt er would only be justified in

u sing deadly force against Muldrow (1) if he would be justif i e d under Section 9.31 and (2) when

an d to the degree Carter reas onabl y believe d th e deadly fo rce wa s immediately necessa ry to pro tect himself from Muldrow ’ s use of unlawful deadly force. See T EX
. P ENAL C ODE A NN
. § 9.32(a)(1)

– (2) ; Bar rios v. State , 389 S. W

. 3d 3 82, 3 94 (Tex. App.

— Texarkana 2012 , pet. ref’d ) . “ The actor ’ s be li ef

. . . th at the dead ly for ce was immediately necessary

. . . is presumed to be reasonable [only] if the actor

. . . was not otherwise engaged in criminal ac tivi ty, other than a Class C m isdem eanor . . . . ” T EX
. P ENAL C ODE A NN
. § 9.32(b)(3). In read in g the sta t utory langua ge, c ounsel could have reasoned tha t the evidence failed to show that Muldrow used unlawful deadly force against Carter , which was requir ed t o justify Carter’s use o f deadl y force. Also, since the evidence demonstrated that Ca rter wa s involved in an illeg al dr ug transaction, counsel could have concluded that Carter’s belief that deadly force was required would not be presumed reasonable. Base d on this silent recor d , w e fin d that counsel’s decision to refrain from seeking a sel f

def en se instruc tion did not fall below an objective standard o f reasonableness, based on prevailing professional norms . As a result, we find that Carter cannot mee t th e first Strickland
pro n g , and w e overrule his first point of error.11

B. Reasonable Counse l Cou ld Have Foun d No Evidenc e of a Lesser Offense In his secon d point of error, Carter argues that his counsel should have requested the trial court to submit an i nstruction on the l esse r - in c l uded offense of mans laugh ter. Based on Cavazos v. State , 382 S .W.3 d 377, 385

– 86 (Tex. Crim. App. 2012) , we d isagr ee. The determination of whet her to submit a lesser

- included

- offense issue to the jury is subject to the two

- part “

Aguilar/Rousseau tes t.” I d. at 382 . “ First, the c ourt determines if the proof necessary to es tablish the charged offense also include s the lesser offense. ” Id. Second ,

“ the court must then consider whether the evidence shows that if the Appellant is guilty, he is guil ty o nly o f the lesser offense. ” Id

. While Cava zos determined t hat proof nec es sary to
est ablish murder als o includes t he le sser offense of manslaughter, it also illustrated why Carter’s counsel could have determined that he could not meet the second requi reme nt o f the Aguilar/Rousseau test
. See i d. at 384. As explained in Cavaz os , to meet t he second requirement , [t] her e mu st be some affirmative evidence tha t Appellant did not intend to cause serious bodily injury when he shot the victim

. . . and must be som e a f f irmative evidence from w hich a rational juror could infer that App el lant was aware of but consciously disr egarded a su bstantial and unjustifiable risk th at death would occur as a result of his conduct. Id. at 385. Carter argues that his family’s tes tim o n y was sufficient to esta blish the second requirement. “ While it i s true that the evi dence may be weak or contradi cted , the evidence must still be direct ly germane to the lesser

- included offense and must rise to a le vel that a rational jury could find th a t if Appellant is guilty, he i s guilty only of the lesser

- included of fense. ” Id.

“ Me eting this threshold requires mor e than mere speculation

— it requires affirmative evidence12

that both raises the lesser

- included offe nse and rebuts or negates an elemen t o f the greater offense. ” I

d. I n Cavazos , a witness testified that Cavazos told her that he did not me a n to shoot
anyone. As a result, Cavazos argued that the intent element of the greater offense was negated by th at testimony because it sh owed there was “ n o evidence t hat h e intentionally pu ll ed the trigger

. ” Id. Cav azos reasoned t hat “ pulling o ut a loaded gun in a room full of people is a reckless act and that shooting directly at a person twice is still reckless as long as the ev iden ce shows no intent t o do so. ” Id. Th e Texas Court of Crim inal Appeals disagreed. Id. In d oing so, it re asoned , T here was no evidence directly germane t o recklessness. Pulling out a gun, pointing it at som eone, pulling the trigger twice, fleeing the sce ne (and the countr y ) , and late r tel li ng a friend “I didn ’ t mean to shoot anyone” does not rationally suppor t an inferen ce that Appellant acted recklessly at the moment he fired the shots. The evidence here d oes not support a finding of recklessness an d do es not rise to [ th e ] level that wou l d convince a rational jury to find that if Appellant is guilty, he is guilty of only the lesser

- included offense. Id. We fi nd that counsel could have reasonably concluded that the same reasoning in Cavazos applied here. The evidence sh o w ed that Car ter r e sponded to Muldrow’s attempt to take his money by pull ing out a gun. Despite Fuller ’ s and Anderson’s testimony, nothing showe d that Carter was merely reckless in pointing the weapon at Muldrow and firing twice while in clo se

r ange. In t h e absence of so me t hing more , we canno t find that counsel was unreasonab le in concluding the re wa s no eviden ce directly germane to reckless ness and that, as a result, Carter13

would not have been entitled to an instruction on the lesser

- included offense of m a ns laug hter. Ac co rdingly, we ov errul e Carter’s second p oint of error. 3 IV. Counsel Was Not Ineffective at Punish ment Next , Carter raises two grounds of ineff ective assistance during punishment

— statutory error and failure to submit a sudden

- passion in s t ru ctio n . We f in d that Carter c annot me et the Strick land test on these grounds. A. Carter Was Not Prejudiced b y Statut ory Error The State alleged two punishment enh ancement allegations: (1) that Carter “ was f inally convicted on January 12, 2009, of the f e l ony offe ns e of Burglary of a Hab itati on in the 202 n d District Court of Bowie County, Texas , in cause number 08F0806

- 202 ” and (2) that Carter “ was finally convicte d on February 14, 2011, of the felony offense of Aggravated Robbery in the 5 th District Cour t of Bowi e Co unty, Texas, in caus e num ber 10F0774

- 00 5. ” The r eporter’s record shows that, contrary to the requiremen ts of Articles 36.01 and 37.07 of the Texas Code of Criminal Procedure , the punishment enhancement allegations were not presented to the ju r y , a nd C ar te r made no plea on the enhancement alleg ations. See T EX
. C ODE C RIM
. P ROC
. A NN
. art
. 36.01, art. 37 .07 ( Supp.) . As a result, Carter argues that his couns el rendered ineffective assistance by failing to object to the statutory errors. Assumin g tha t Ca rt er meets th e fir st Strickland prong to sh ow that his counsel should have objecte d, we find that he cannot me et the second Strickland prong . See Linton v. State , 15

3 We also note that Ca rter’s brief stated the following: “Admi ttedly, such a decision to no t r e q u est a lesser

included [

- ] offense instructi on could be par t of a reasonable all

- or - nothing trial strategy. See Ex part e White , 160 S.W.3d 46, 55 (Tex. Crim. App. 2 00 4) [(orig. proceed ing)] .”14

S.W.3d 615, 620 (Tex. App.

— Houston [14th Dist.] 2000, pet. ref’d) ( “ Because the f a ilu re t o

re ad enhanc ement [] paragraphs a nd a defend ant ’ s plea to the jury is statutory err or, the proper harm analy sis is that for reviewing non

- constitutional error

. ” (citing T EX
. R. A PP
. P. 44.2(b)) )

. Here, Carter stipulated to the judgments of conv i c tion sh o w ing that he was p reviously convicted of th e burglary of a habitation and aggravat ed robbery, as alleged by th e State’s punishment enhancement allegations. Because of the stipulation, we find that Carter cannot show there wa s a reasonable probab i l ity tha t the result o f the proceeding would have be en different but for trial counsel’s de ficient performance . As a r esult, we overrule Carter’s third point of erro r. 4 B. Counsel Was Not Ineffective b y Failing to Request a Sudden - Passion Instruction

“ At t h e pun is h ment stage o f a t rial, the defendant may raise the issue as to whether he caused the death under the immed iate influence of sudden passion arising from an ad equate

cause. ” T EX
. P ENAL C ODE A NN
. § 19.02(d) (Supp.) . “ If the defendant proves the is s u e in th e affirmative by a preponderance of the ev idence, the offense is a felony of the second degree. ” Id.

“ ‘ S udden passion ’ means passion directly caused by and arising out of provocation by the individual killed

. . . which passion arises at the tim e of t h e o ffense and is no t solely the result of fo rmer provocation. ” T EX
. P ENAL C ODE A NN . § 19.02( a ) (2) (Supp.)

. “ ‘ Adequate cause ’ me ans cause that would commonly produce a degree of anger, rage, resentment, or terror in a person of

4 At punishment, Carter also stipulated to judgments showi ng t h at h e was convicted of engag ing in delinque nt cond uct as a minor , unlawful ly carry ing a weapon , burglary of a nother habitation , and possessio n of marihuana

.15

ordinary temper, suf

f i ci ent t o ren der th e min d incapable of cool reflec tion. ” T EX
. P ENAL C ODE A NN . § 19.02 ( a ) (1) (Supp .)

. Here , “ w e cannot find counsel deficien t because the existing direct

- appeal record is inadequately developed. ” Hart v. State , 667 S.W.3d 774, 777 (Tex

. Cr im. A p p. 2023)

. “ For a claim of fear to rise t o the level of sudden passion, the defe ndant ’ s mind must be ren dered incapable of cool reflec tion. ” Gonzales v. State , 717 S. W.2d 355, 357 (Tex. Crim. App. 1986) ( citing Daniels v. State , 645 S.W .2d 459 ( T e x. Cri m . App

. 1983) )

. Counsel could have decid ed to forego a sudden

- passion instru ct ion beca use he could have found that, at best, Carter’s family’s testimony established only that he was afraid of Muldrow , but “ a mere claim of fear

. . . does not estab l i s h th e existe nce of sudden passion arising from an adequate cause. ” Id

. (finding that a defendant’s claim that he was scared of the deceased was insufficie nt to raise the issue tha t he was actin g under the imm ediate influence of sudden passion arising f r o m an ad equate cause)

. C ounsel could have also decided that, even though testimony sho wed that Carter reacted to Muldrow’s at tempt to rob him and that Muld row was large and strong, t here was no testimon y to in dicate that Carter “ became enraged, resentfu l o r terrified immediately prior t o the shoot ing , ” especially since he was the only person with a deadly weapon. Id. ; s ee Willis v. State , 936 S.W.2d 302, 309 (Tex. App.

— Tyler 199 6 , pet. ref’d )

. On this silent record, Carter cannot defeat the strong pr e s u mp t ion that counsel ’ s decisions during the trial fell within the wide range of re asonable p rofessional assistance. See Strickl and , 466 U.S. at 689; Hart , 667 S.W.3d at 78 2. Since nothing i n the record supports the conclusion that trial counsel ’ s failu r e to request a sudden

- passion instruction w as s o outrageous that no16

competent atto rney w ould have failed to request it , we hold t hat Carter failed to establish Strickland ’s fir st prong. Conse quently, we overrule Carter’s last point of error. V. Conclu s i o n We affirm the trial court’s judgment.

Scott E. Stevens Chief Justice Date Submi tted: January 26 , 202 4 Date Decided: Feb ru ary 21 , 202 4 Do Not Publis h