Tyra Ann Whitney v. State, 396 S.W.3d 696

Appellant Tyra Whitney was convicted of murder in the Second District Court of Appeals, Fort Worth, and the trial court sentenced her to 15 years’ confinement after a punishment phase.
Whitney killed her daughter's boyfriend with a hammer during a quarrel at the apartment shared with Tashira; she soaked the victim with bleach-water before striking him twice.
A neighbor observed Whitney exiting the van with a yellow-handled hammer; the hammer showed blood after the attack.
Whitney was indigent and received a court-appointed lawyer, William Harris; co-counsel Wes Bearden volunteered to assist but was not formally appointed to participate actively.
A visiting judge oversaw the trial; Whitney objected to Bearden’s lack of active participation, which the court initially allowed with a running objection.
Whitney appealed asserting: (1) denial of co-counsel’s active participation, (2) inclusion of a no-duty-to-retreat instruction, and (3) denial of a mistrial after a closing-argument objection; the court affirmed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Co-counsel participation right	Whitney contends Sixth Amendment right to counsel of choice was violated.	Bearden’s participation was improper because he lacked appointment as co-counsel.	Trial court did not violate Sixth Amendment; error not shown.
No-duty-to-retreat instruction	Instruction incorrectly implies a duty to retreat despite 2007 amendment.	Instruction tracks legislature’s no-duty-to-retreat provision and is permissible.	Instruction properly tracked the law and was not error.
Prosecutorial jury argument and mistrial	Prosecutor overstepped by implying defense counsel influenced a witness’s testimony; request for mistrial should be granted.	Objection sustained; curative instruction given; mistrial not warranted.	Trial court did not abuse discretion; mistrial denied.

Gonzalez-Lopez, 548 U.S. 140 (2006) (no right to select counsel when counsel appointed by court)
Trammell v. State, 287 S.W.3d 336 (Tex. App.—Fort Worth 2009) (no right to choose appointed counsel; no structural error shown)
Morales v. State, 357 S.W.3d 1 (Tex. Crim. App. 2011) (no-duty-to-retreat provisions; when applicable, they negate duty to retreat)
Martinez v. State, 924 S.W.2d 693 (Tex. Crim. App. 1996) (courts will not be held to error for tracking legislature’s self-defense provisions)
Riddle v. State, 888 S.W.2d 1 (Tex. Crim. App. 1994) (no error for tracking statutory provisions in jury charge)
Davis v. State, 329 S.W.3d 798 (Tex. Crim. App. 2010) (prosecutor cannot attack defense counsel over the shoulders of counsel)
Phillips v. State, 130 S.W.3d 343 (Tex. Crim. App. 2006) (improper to attack defense counsel personally)
Archie v. State, 340 S.W.3d 734 (Tex. Crim. App. 2011) (three-factor test for mistrial due to improper jury argument)
Hawkins v. State, 135 S.W.3d 72 (Tex. Crim. App. 2004) (mistrial not required if cure by instruction is effective)
Mosley v. State, 983 S.W.2d 249 (Tex. Crim. App. 1998) (striking over counsel’s shoulders; improper argument standard)