In the

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 Stevens
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MEMORANDUM OPINION

A Bowie County jury convicted Charles Jerome Carter of murder. After finding the 

State’s punishment enhancement allegations true, the jury assessed a sentence of life 

imprisonment and 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 lesserincluded offense during guilt/innocence. 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 Carter cannot show that his counsel was ineffective because he was not 

entitled to self-defense or lesser-included-offense instructions. We also find that Carter’s

stipulation to the prior enhancement allegations removed any prejudice from the lack of a 

presentment and plea to 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 Assistance of Counsel 

As many cases 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 defendant] must satisfy the two-prong[ed] test set 

forth 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 under 
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either prong of the Strickland test defeats a claim for ineffective 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 of reasonableness, based on prevailing 

professional norms, 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; Hernandez v. State, 726 S.W.2d 53, 55–57 (Tex. Crim. App. 1986). A “reasonable 

probability” means a “probability sufficient to undermine confidence in the outcome.” 

Strickland, 466 U.S. at 694.

II. The Evidence at Guilt/Innocence

Officers from the Texarkana, Texas, Police Department (TTPD) and 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 Nick Muldrow

alone and unresponsive in the driver’s seat of his blue Cadillac Deville next to a firearm and “a 

rather large bag of a green, leafy substance,” later confirmed to be 977.56 grams of marihuana. 

Officers removed Muldrow from the car and discovered that he had been shot in the chest and 

leg. Despite first aid treatment, Muldrow did not survive his injuries. 

The TTPD and TAPD secured the crime scene and began speaking with witnesses. 

Joshua Guy spoke with Cody Harris, a TTPD sergeant, and said that he had seen an AfricanAmerican male fire a gun around lunchtime. According to Harris, Guy had witnessed a struggle 

in Muldrow’s car. Guy testified that someone had dropped a black suitcase and a cellphone on 
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the ground before driving away in a black sports utility vehicle (SUV). Officers located the 

suitcase and cellphone at the scene and secured them along with a cigarette butt found close by. 

Amanda Temple, another eyewitness, spoke with TTPD Detective Craig Buster. Temple

testified that, after hearing a gunshot, she witnessed someone get out of Muldrow’s car and get 

into a black Nissan or Chevrolet SUV with “two to three guys in the vehicle.” Temple said the 

black SUV fled the parking lot immediately after the shooting.1 Officers recovered videosurveillance footage from businesses in the area depicting Muldrow’s vehicle and the suspect 

vehicle. Video-surveillance footage showed that, when Muldrow’s car pulled up close to the 

black SUV, someone exited the SUV and entered Muldrow’s car. A few seconds later, the same 

person hurriedly returned to the SUV, and it sped off. The surveillance footage showed that the 

suspect vehicle was a black Nissan Rogue. 

After Muldrow was transported to the hospital, officers processed his vehicle. Joshua 

Jones, a TAPD officer, testified that the gun inside the car was a Smith & Wesson SD40

handgun with a .40 caliber cartridge case jammed inside. Officers also found a bullet that had 

penetrated through the driver’s side seat. Aaron Lewis, an investigator with the TTPD, 

conducted a firearm trace of the gun, which revealed that it had been purchased from Academy 

Sports + Outdoors by Bria Page, who lived in a house on Citation Street. Lewis then realized 

that Page had called TTPD about an hour after Muldrow’s murder to report her gun stolen. 

When TTPD Officer Scott Eudy asked Page for the serial number of the gun, Page said that she 

would supply the information but never did. 

1Temple told officers that she believed one of the suspects in the SUV was Marques Thompson. Harris testified that 

Thompson was arrested but was released after providing a solid alibi. 
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Officers obtained a search warrant for Page’s home. Buster testified that he and Jones 

executed the warrant and were surprised when they saw a black Nissan 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 testified that they found a Smith & Wesson gun box in Page’s closet and 

that the serial number on the box matched the serial number of the weapon recovered from 

Muldrow’s car. Buster testified that he noticed a photograph of Page hugging her boyfriend, an

African-American male who “appeared to be the same subject that was on the background lock 

screen of the cellular device that was recovered from the crime scene.” Page identified her 

boyfriend as Carter. 

Page testified that she started dating Carter in December 2020 and that he soon moved in 

with her. She said the SUV was her vehicle and that she had just purchased a new white Cadillac 

for Carter for Christmas. According to Page, Carter had stayed out playing dice on the night 

before the shooting but returned home drunk in the early hours of January 12. Page testified that 

Carter was still asleep when she left for work in the morning in her SUV but that he was gone 

when she came home before lunch. Page said she hung up the keys to the SUV and took the 

Cadillac back to work so she could eventually take it to be registered. Bonderick Nard, Carter’s

cousin and best friend, called Page after lunch and told her to report her gun stolen. Page, who 

heard Carter, Nard’s brother Ikil Banks, and a baby in the background of the call, complied with 

Nard’s request. When Page returned home after work, she noticed that Carter had packed his 

clothes and left. Page’s SUV was in her driveway, but Carter’s mother had the keys. 
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Later, Carter called Page using Banks’s phone and asked her to meet him in Little Rock, 

Arkansas. Page met Carter, Banks, and Nard, and they went to Walmart to get Carter a new

phone after he claimed his had been stolen. After spending the night at Carter’s grandmother’s 

house in Little Rock, Page returned to Texarkana, leaving Carter behind. That day, Carter told 

Page to clean out her SUV. When she did, she found a shell casing in the floorboard of the back 

seat but maintained that she still did not know Carter had been involved in a murder. 

Phillip Duong, a forensic firearm and toolmarks examiner for the Texas Department of

Public Safety Crime Laboratory, testified that the laboratory received Page’s Smith & Wesson 

found in Muldrow’s vehicle, a magazine, three fired cartridge casings, and two fired bullets. In 

Duong’s opinion, all of the cartridges and bullets were fired from Page’s gun. Even though 

fingerprint analysis from the magazine of the firearm revealed Nard’s prints, officers located 

social media postings showing Carter prominently displaying Page’s gun.

Brian Tribble, a detective with TAPD, testified that the phone left at the scene had an 

Android identification number and “an email account of . . . carterg10flat@gmail.com.” Harris 

testified that Carter’s photo was on the phone’s background and that analysis of the phone when 

compared to Muldrow’s phone showed several calls between Carter and Muldrow leading up to 

the minutes before the murder. Analysis of Nard’s cellphone showed that he had called Carter’s 

mother after the murder at 11:50 a.m. Alisha Lagrini, a forensic scientist with the Texas 

Department of Public Safety Garland Crime Laboratory, testified that Carter and Muldrow had 

both contributed to the DNA found on the cellphone and that Nard was excluded as a contributor 

of the DNA. DNA analysis also showed that Nard had smoked the cigarette left at the scene. 
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Critically, Lagrini testified that a swab of Muldrow’s left hand fingernail clippings had a mixture 

of DNA and that Carter was a possible contributor to that DNA mixture. 

At trial, the testimony of Carter’s family members was favorable to the State. Lasherika 

Anderson, Carter’s cousin who lived in Little Rock, testified that Carter called her while in Little 

Rock to borrow a phone charger. According to Anderson, Carter told her the “details of what 

happened and why he felt like he had to do it.” Carter told Anderson that he had met Muldrow 

“to do a drug exchange” but that Muldrow reached for Carter’s money after Carter got into

Muldrow’s car. Anderson testified, “They got to tasseling. [Carter] told me he ended up 

shooting the guy twice, and that he dropped his phone at the scene, and that’s why now he has 

this phone, and he was asking for a charger.” Anderson said that, “from [her] understanding, it 

was more of a self-defense.” 

Stephanie Fulton, Carter’s aunt and Nard and Banks’s mother, testified that she spoke to 

Carter a few days after the shooting.2 According to Fulton, Carter “was kind of shaken up” and

said that he had met Muldrow to “do a weed exchange” but that Muldrow grabbed Carter and 

they started struggling. Fulton testified that Carter admitted to shooting Muldrow, retrieving his 

money from Muldrow, and fleeing the scene in the SUV. Fulton said she advised Carter to turn 

himself in. 

After hearing this evidence, the jury convicted Carter of murder. 

2Nard, who sold drugs with Vance Brown, was later murdered by Brown. 
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III. Counsel Was Not Ineffective in Failing to Seek Defensive Instructions During 

Guilt/Innocence 

Carter argues that his counsel rendered ineffective assistance by failing to seek selfdefense and lesser-included-offense instructions. Because we conclude that Carter cannot meet 

the first Strickland prong, we disagree. 

Under the first Strickland prong, “the defendant must prove, by a preponderance of the 

evidence, that there is . . . no plausible professional reason for a specific act or omission.” Bone 

v. State, 77 S.W.3d 828, 836 (Tex. Crim. App. 2002). We note that judicial scrutiny of counsel’s 

performance must be highly deferential, and “the defendant must overcome the presumption that, 

under the circumstances, the challenged action ‘might be considered sound trial strategy.’” 

Strickland, 466 U.S. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)). We apply a 

strong presumption that trial counsel was competent and presume that counsel’s actions and 

decisions were reasonably professional and motivated by sound trial strategy. Jackson v. State, 

877 S.W.2d 768, 771 (Tex. Crim. App. 1994). Also, when an appellate record is silent on why 

trial counsel failed to take certain actions, “the appellant has failed to rebut the presumption that 

trial counsel’s decision was in some way—be it conceivable or not—reasonable.” Mata v. State, 

226 S.W.3d 425, 431 (Tex. Crim. App. 2007); see Thompson v. State, 9 S.W.3d 808, 814 (Tex. 

Crim. App. 1999).

Here, the record is silent as to why counsel did not object to the jury charge. In light of

the evidence presented at trial, we find it likely that counsel decided not to request the defensive 

instructions Carter wished for because he reasonably determined that Carter was not entitled to 

them.
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A. Reasonable Counsel Could Have Found Self-Defense Inapplicable

On the record before us, we find that Carter’s counsel could have reasonably determined

that the theory of self-defense was not available to Carter (1) since he did not meet the 

confession and avoidance doctrine and (2) since Muldrow did not use deadly force against 

Carter. 

“Confession and avoidance is a judicially imposed requirement that requires defendants 

who assert a justification defense to admit, or at a minimum to not deny, the charged conduct.” 

Rodriguez v. State, 629 S.W.3d 229, 231 (Tex. Crim. App. 2021). Because it can justify the 

commission of an offense, “[s]elf-defense is a confession-and-avoidance defense requiring the 

defendant to admit his otherwise illegal conduct.” Jordan v. State, 593 S.W.3d 340, 343 (Tex. 

Crim. App. 2020) (citing Juarez v. State, 308 S.W.3d 398, 404 (Tex. Crim. App. 2010) (finding 

that a defendant cannot both invoke self-defense and flatly deny the charged conduct). 

Here, Carter did not admit to any element of the offense. He suggested at trial that Nard 

could have been the shooter since his fingerprints were found on the magazine. Even after his 

family’s testimony, Carter cross-examined them on whether they were trying to protect Nard’s 

memory. Carter’s closing argument, excerpted below, showed that Carter did not even agree that 

he was at the scene:

The state would never be able to, and they haven’t, shown you Charles Carter --

showing Charles Carter holding a firearm on the date of January 12, 2021. They 

haven’t shown Charles Carter was at the scene of this murder. They’ve shown 

you evidence of his cell phone being there, but not Charles Carter. They 

presented no evidence, and I said this in the opening, of Charles Carter firing a 

firearm. And most importantly, they have not shown Charles Carter committing 

any act leading to the death of Nicholas Muldrow.
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Given that counsel could have been instructed by Carter to deny each element of the offense, we 

find it reasonable for counsel to have determined not to employ a confession-and-avoidance 

strategy and, as a result, for counsel to have concluded that Carter could not seek a self-defense 

instruction. 

Moreover, under Section 9.32 of the Texas Penal Code, Carter would only be justified in 

using deadly force against Muldrow (1) if he would be justified under Section 9.31 and (2) when 

and to the degree Carter reasonably believed the deadly force was immediately necessary to 

protect himself from Muldrow’s use of unlawful deadly force. See TEX. PENAL CODE ANN.

§ 9.32(a)(1)–(2); Barrios v. State, 389 S.W.3d 382, 394 (Tex. App.—Texarkana 2012, pet. 

ref’d). “The actor’s belief . . . that the deadly force was immediately necessary . . . is presumed 

to be reasonable [only] if the actor . . . was not otherwise engaged in criminal activity, other than 

a Class C misdemeanor . . . .” TEX. PENAL CODE ANN. § 9.32(b)(3). 

In reading the statutory language, counsel could have reasoned that the evidence failed to 

show that Muldrow used unlawful deadly force against Carter, which was required to justify 

Carter’s use of deadly force. Also, since the evidence demonstrated that Carter was involved in 

an illegal drug transaction, counsel could have concluded that Carter’s belief that deadly force 

was required would not be presumed reasonable. 

Based on this silent record, we find that counsel’s decision to refrain from seeking a selfdefense instruction did not fall below an objective standard of reasonableness, based on 

prevailing professional norms. As a result, we find that Carter cannot meet the first Strickland 

prong, and we overrule his first point of error. 
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B. Reasonable Counsel Could Have Found No Evidence of a Lesser Offense 

In his second point of error, Carter argues that his counsel should have requested the trial 

court to submit an instruction on the lesser-included offense of manslaughter. Based on Cavazos 

v. State, 382 S.W.3d 377, 385–86 (Tex. Crim. App. 2012), we disagree. 

The determination of whether to submit a lesser-included-offense issue to the jury is 

subject to the two-part “Aguilar/Rousseau test.” Id. at 382. “First, the court determines if the 

proof necessary to establish the charged offense also includes the lesser offense.” Id. Second, 

“the court must then consider whether the evidence shows that if the Appellant is guilty, he is 

guilty only of the lesser offense.” Id. While Cavazos determined that proof necessary to 

establish murder also includes the lesser offense of manslaughter, it also illustrated why Carter’s 

counsel could have determined that he could not meet the second requirement of the 

Aguilar/Rousseau test. See id. at 384. 

As explained in Cavazos, to meet the second requirement,

[t]here must be some affirmative evidence that Appellant did not intend to cause 

serious bodily injury when he shot the victim . . . and must be some affirmative 

evidence from which a rational juror could infer that Appellant was aware of but 

consciously disregarded a substantial and unjustifiable risk that death would occur 

as a result of his conduct.

Id. at 385. Carter argues that his family’s testimony was sufficient to establish the second 

requirement. “While it is true that the evidence may be weak or contradicted, the evidence must 

still be directly germane to the lesser-included offense and must rise to a level that a rational jury 

could find that if Appellant is guilty, he is guilty only of the lesser-included offense.” Id. 

“Meeting this threshold requires more than mere speculation—it requires affirmative evidence 
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that both raises the lesser-included offense and rebuts or negates an element of the greater 

offense.” Id. 

In Cavazos, a witness testified that Cavazos told her that he did not mean to shoot 

anyone. As a result, Cavazos argued that the intent element of the greater offense was negated 

by that testimony because it showed there was “no evidence that he intentionally pulled the 

trigger.” Id. Cavazos reasoned that “pulling out 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 evidence 

shows no intent to do so.” Id. The Texas Court of Criminal Appeals disagreed. Id. In doing so, 

it reasoned,

There was no evidence directly germane to recklessness. Pulling out a gun, 

pointing it at someone, pulling the trigger twice, fleeing the scene (and the 

country), and later telling a friend “I didn’t mean to shoot anyone” does not 

rationally support an inference that Appellant acted recklessly at the moment he 

fired the shots. The evidence here does not support a finding of recklessness and 

does not rise to [the] level that would convince a rational jury to find that if 

Appellant is guilty, he is guilty of only the lesser-included offense.

Id. 

We find that counsel could have reasonably concluded that the same reasoning in 

Cavazos applied here. The evidence showed that Carter responded to Muldrow’s attempt to take 

his money by pulling out a gun. Despite Fuller’s and Anderson’s testimony, nothing showed that 

Carter was merely reckless in pointing the weapon at Muldrow and firing twice while in close 

range. In the absence of something more, we cannot find that counsel was unreasonable in 

concluding there was no evidence directly germane to recklessness and that, as a result, Carter 
13

would not have been entitled to an instruction on the lesser-included offense of manslaughter. 

Accordingly, we overrule Carter’s second point of error.3 

IV. Counsel Was Not Ineffective at Punishment 

Next, Carter raises two grounds of ineffective assistance during punishment—statutory 

error and failure to submit a sudden-passion instruction. We find that Carter cannot meet the 

Strickland test on these grounds.

A. Carter Was Not Prejudiced by Statutory Error 

The State alleged two punishment enhancement allegations: (1) that Carter “was finally 

convicted on January 12, 2009, of the felony offense of Burglary of a Habitation in the 202nd

District Court of Bowie County, Texas, in cause number 08F0806-202” and (2) that Carter “was 

finally convicted on February 14, 2011, of the felony offense of Aggravated Robbery in the 5th

District Court of Bowie County, Texas, in cause number 10F0774-005.” The reporter’s record 

shows that, contrary to the requirements of Articles 36.01 and 37.07 of the Texas Code of 

Criminal Procedure, the punishment enhancement allegations were not presented to the jury, and 

Carter made no plea on the enhancement allegations. See TEX. CODE CRIM. PROC. ANN. art.

36.01, art. 37.07 (Supp.). As a result, Carter argues that his counsel rendered ineffective 

assistance by failing to object to the statutory errors. 

Assuming that Carter meets the first Strickland prong to show that his counsel should 

have objected, we find that he cannot meet the second Strickland prong. See Linton v. State, 15 

3We also note that Carter’s brief stated the following: “Admittedly, such a decision to not request a lesserincluded[-]offense instruction could be part of a reasonable all-or-nothing trial strategy. See Ex parte White, 160 

S.W.3d 46, 55 (Tex. Crim. App. 2004) [(orig. proceeding)].” 
14

S.W.3d 615, 620 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d) (“Because the failure to 

read enhancement[] paragraphs and a defendant’s plea to the jury is statutory error, the proper 

harm analysis is that for reviewing non-constitutional error.” (citing TEX. R. APP. P. 44.2(b))). 

Here, Carter stipulated to the judgments of conviction showing that he was previously 

convicted of the burglary of a habitation and aggravated robbery, as alleged by the State’s 

punishment enhancement allegations. Because of the stipulation, we find that Carter cannot 

show there was a reasonable probability that the result of the proceeding would have been 

different but for trial counsel’s deficient performance. As a result, we overrule Carter’s third 

point of error.4

B. Counsel Was Not Ineffective by Failing to Request a Sudden-Passion 

Instruction 

“At the punishment stage of a trial, the defendant may raise the issue as to whether he 

caused the death under the immediate influence of sudden passion arising from an adequate 

cause.” TEX. PENAL CODE ANN. § 19.02(d) (Supp.). “If the defendant proves the issue in the

affirmative by a preponderance of the evidence, the offense is a felony of the second degree.” Id. 

“‘Sudden passion’ means passion directly caused by and arising out of provocation by the 

individual killed . . . which passion arises at the time of the offense and is not solely the result of 

former provocation.” TEX. PENAL CODE ANN. § 19.02(a)(2) (Supp.). “‘Adequate cause’ means 

cause that would commonly produce a degree of anger, rage, resentment, or terror in a person of 

4At punishment, Carter also stipulated to judgments showing that he was convicted of engaging in delinquent 

conduct as a minor, unlawfully carrying a weapon, burglary of another habitation, and possession of marihuana. 
15

ordinary temper, sufficient to render the mind incapable of cool reflection.” TEX. PENAL CODE 

ANN. § 19.02(a)(1) (Supp.). 

Here, “we cannot find counsel deficient because the existing direct-appeal record is 

inadequately developed.” Hart v. State, 667 S.W.3d 774, 777 (Tex. Crim. App. 2023). “For a 

claim of fear to rise to the level of sudden passion, the defendant’s mind must be rendered 

incapable of cool reflection.” Gonzales v. State, 717 S.W.2d 355, 357 (Tex. Crim. App. 1986)

(citing Daniels v. State, 645 S.W.2d 459 (Tex. Crim. App. 1983)). Counsel could have decided 

to forego a sudden-passion instruction because 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 establish the existence of sudden passion arising from an adequate cause.” Id. (finding 

that a defendant’s claim that he was scared of the deceased was insufficient to raise the issue that 

he was acting under the immediate influence of sudden passion arising from an adequate cause). 

Counsel could have also decided that, even though testimony showed that Carter reacted to 

Muldrow’s attempt to rob him and that Muldrow was large and strong, there was no testimony to 

indicate that Carter “became enraged, resentful or terrified immediately prior to the shooting,”

especially since he was the only person with a deadly weapon. Id.; see Willis v. State, 936 

S.W.2d 302, 309 (Tex. App.—Tyler 1996, pet. ref’d). 

On this silent record, Carter cannot defeat the strong presumption that counsel’s decisions 

during the trial fell within the wide range of reasonable professional assistance. See Strickland, 

466 U.S. at 689; Hart, 667 S.W.3d at 782. Since nothing in the record supports the conclusion 

that trial counsel’s failure to request a sudden-passion instruction was so outrageous that no 
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competent attorney would have failed to request it, we hold that Carter failed to establish 

Strickland’s first prong. Consequently, we overrule Carter’s last point of error. 

V. Conclusion

We affirm the trial court’s judgment. 

Scott E. Stevens 

Chief Justice

Date Submitted: January 26, 2024

Date Decided: February 21, 2024

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