                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana
        ______________________________

              No. 06-10-00012-CR
        ______________________________


    JOHN WILLIAM TROTMAN, III, Appellant

                         V.

         THE STATE OF TEXAS, Appellee




   On Appeal from the 196th Judicial District Court
                Hunt County, Texas
               Trial Court No. 24916




    Before Morriss, C.J., Carter and Moseley, JJ.
   Memorandum Opinion by Chief Justice Morriss
                                    MEMORANDUM OPINION

        Without warning, John William Trotman, III, burst through the front door of Ryan

Rhoden’s home on the evening of November 12, 2007, where Ryan’s sister, Glenisha Rhoden,

stood. Trotman was wearing a mask and carrying a butcher knife. He scuffled with Glenisha,

demanding money and threatening her with the knife. On hearing the commotion, Ryan emerged

from the hallway carrying a baseball bat. The three struggled and ended up in the bedroom,

where they fell in a heap. While Ryan was on the floor, Trotman stabbed him in the heart,

inflicting a fatal wound. Trotman fled the scene of the crime, but was arrested a short time later.

A jury convicted Trotman of capital murder and sentenced him to life in prison. Trotman appeals

his conviction, alleging four points of error.

        We affirm the judgment of the trial court because (1) the trial court did not err in dismissing

second chair counsel when the death penalty claim was abandoned, (2) the evidence is legally and

factually sufficient to prove capital murder, (3) the trial court did not err in failing to instruct the

jury on self-defense, and (4) the failure to request a jury instruction on the lesser-included offense

of murder did not render Trotman’s trial counsel ineffective.

(1)     The Trial Court Did Not Err in Dismissing Second Chair Counsel When the Death
        Penalty Claim Was Abandoned

        After the State announced its intention to seek the death penalty against Trotman, the trial

court appointed Scott A. Cornuaud as second-chair counsel for Trotman, in accordance with




                                                   2
Article 26.052 of the Texas Code of Criminal Procedure.1 TEX. CODE CRIM. PROC. ANN. art.

26.052 (Vernon Supp. 2009). A few weeks before trial, the State announced in open court that it

no longer intended to seek the death penalty against Trotman. Jury selection was scheduled to

begin September 28, 2009, with trial to commence October 5, 2009. At the time of the State’s

announcement, Cornuaud had been working on the case for ten months. The trial court removed

Cornuaud as counsel for Trotman over lead counsel’s objection.2




1
    The order appointing Cornuaud provides, in part:

            The Court, after having reviewed the pleadings on file and hearing the evidence and arguments of
            counsel is of the opinion and so finds that the Defendant is entitled to second chair attorney to
            represent him against the charge of Capital Murder, as alleged by the State. The Court finds that
            Scott A. Cornuaud has been approved for second chair trial counsel pursuant to the List Of
            Attorneys Qualified For Appointment To Death Penalty Cases In The First Administrative Judicial
            Region-Revised November 2008, a copy of pertinent parts which is attached to this order.
2
    This discussion occurred between the trial court and Toby Wilkerson, lead counsel for Trotman:

            [Wilkerson]: And Judge, I’m asking Mr. Cornuaud be allowed to stay on the case because he’s
            helped all along and he knows things.

            [Court]: Okay. But I cannot pay somebody legally, I don’t think. I can pay him for all he’s done
            to this point. I appoint for death penalty only.

            [Wilkerson]: Judge, for the record the State has two attorneys and I think because it’s capital and
            not just a regular case –

            [Court]: It’s not death.

            [Wilkerson]: I understand that. But just for the record, Judge, I’m asking that Mr. Cornuaud be
            allowed to remain on the case.

            [Court]: Deny.




                                                            3
        On appeal, Trotman contends the trial court erred in rescinding Cornuaud’s appointment.

We disagree.3

        The right to any attorney is a fundamental right. Gideon v. Wainwright, 372 U.S. 335

(1963). If a defendant cannot afford an attorney, counsel shall be appointed by the court to

represent the defendant. Id. at 344. Moreover, once the attorney-client relationship has been

established, the trial court does not have plenary power to remove court-appointed counsel without

sufficient cause. Stearnes v. Clinton, 780 S.W.2d 216, 221–22 (Tex. Crim. App. 1989) (en banc).

Indeed, once a valid appointment has been made, the trial court cannot arbitrarily remove an

attorney as counsel of record over objection. Id. at 223.

        Trotman contends that the rescission of Cornuaud’s appointment, merely because the State

abandoned its plan to seek the death penalty, was not warranted and did not amount to good cause.

Trotman cites Article 26.04(j)(2) of the Texas Code of Criminal Procedure, which provides:

        An attorney appointed under this article shall:

        [R]epresent the defendant until charges are dismissed, the defendant is acquitted,
        appeals are exhausted, or the attorney is relieved of his duties by the court or
        replaced by other counsel after finding of good cause is entered on the record.

TEX. CODE CRIM. PROC. ANN. art. 26.04(j)(2) (Vernon Supp. 2009).


3
 The State argues that this point of error was not preserved for our review, urging that no objection to Cornuaud’s
removal was asserted by Trotman or Wilkerson at the time of jury selection or at the time of trial and that the trial
court’s decision was not challenged by writ of mandamus. See Buntion v. Harmon, 827 S.W.2d 945, 946 (Tex. Crim.
App. 1992) (orig. proceeding) (writ of mandamus to prevent attorney’s removal from case is ―normal vehicle‖ for
seeking relief); see also Stotts v. Wisser, 894 S.W.2d 366, 367 (Tex. Crim. App. 1995). On the record before us, we
decline to find a waiver of this point of error.

                                                         4
         In further support of this contention, Trotman relies on Stearnes.                  In that case, Stearnes

was appointed only one attorney, whose appointment was rescinded by the trial court after the

attorney attempted to vigorously represent his client—by interviewing the primary witness for the

State. On petition for writ of mandamus, the trial court was ordered to rescind its order removing

Stearnes’ counsel from the case, as it did not have the inherent power to validly remove appointed

counsel. Stearnes, 780 S.W.2d at 223. Unlike Stearnes, the trial court’s decision in this case

was based on the elimination of the grounds for appointment of Cornuaud—the State’s intention to

seek the death penalty in the circumstance Trotman was found guilty.

         Trotman also relies on Stotts in support of his contention that the trial court erred in

rescinding Cornuaud’s appointment. The Stotts case is likewise distinguished from the facts

presented here. In Stotts, the defendant’s only attorney was removed on an arbitrary basis without

good cause; the removal was tantamount to leaving the defendant without an attorney. In fact,

Stotts holds that, ―absent a principled reason apparent from the record, a trial judge does not have

discretion to replace appointed trial counsel over objection of both counsel and the defendant.‖

Stotts, 894 S.W.2d at 368. In this case, Trotman continued to be represented by Wilkerson, an

attorney who had been assigned to his case for more than a year and who was qualified to sit as first

chair in a death penalty case.4


4
 Even though this was no longer a death penalty case, Wilkerson’s name appears on the list of attorneys qualified for
appointment to death penalty cases in the first administrative judicial region. Attorneys so qualified are selected by a
local selection committee pursuant to Article 26.052 of the Texas Code of Criminal Procedure. TEX. CODE CRIM.
PROC. ANN. art. 26.052.

                                                           5
         This is not a situation in which the trial court rescinded Cornuaud’s appointment based on

nonexistent ―inherent authority.‖ Article 26.04(j)(2) of the Texas Code of Criminal Procedure

explicitly contemplates the removal of appointed counsel ―after a finding of good cause is entered

on the record.‖ TEX. CODE CRIM. PROC. ANN. art. 26.04(j)(2). The core issue, then, is whether

the State’s decision to abandon the death penalty constitutes good cause for Cornuaud’s removal.

Said another way, we must determine whether the abandonment of the death penalty constitutes a

―principled reason‖ in support of the trial court’s decision. We hold that it does.

         Article 26.052(e) requires that:

         The presiding judge of the district court in which a capital felony case is filed shall
         appoint two attorneys, at least one of whom must be qualified under this chapter, to
         represent an indigent defendant as soon as practicable after charges are filed, unless
         the state gives notice in writing that the state will not seek the death penalty.

TEX. CODE CRIM. PROC. ANN. art. 26.052(e) (Vernon Supp. 2009) (emphasis added).

         Clearly, Trotman was entitled to two appointed attorneys at the inception of his case, one of

whom was statutorily required to be qualified in death penalty cases.               The right to the

appointment of two attorneys exists, however, only in those capital felony cases in which the State

is seeking the death penalty. Furthermore, Article 26.052(a) provides, in part, that ―this article

establishes procedures in death penalty cases for appointment and payment of counsel to represent

indigent defendants at trial . . . .‖ TEX. CODE CRIM. PROC. ANN. art. 26.052(a) (Vernon Supp.

2009).




                                                   6
       The trial court expressed concern regarding authority to continue the appointment of two

attorneys for Trotman, along with the payment of those attorneys, when it became apparent the

State was no longer seeking the death penalty. This is a legitimate concern, given the statutory

language quoted above which rather clearly states that only where the death penalty is being

sought does an indigent defendant have the right to the appointment of two attorneys to represent

him or her at state expense.   Accordingly, we determine that abandonment of the death penalty

constitutes a ―principled reason‖ in support of the trial court’s decision to rescind Cornuaud’s

appointment. In the interests of justice, we further note that, if any error did exist in the trial

court’s determination to rescind Cornuaud’s appointment, any such error has not been shown to

have been harmful. See Brown v. State, 182 S.W.3d 427, 430 (Tex. App.—Texarkana 2005, no

pet.) (where there is no ―total deprivation of the right to counsel,‖ error is not structural and is

subject to harmless-error analysis). We overrule this point of error.

(2)    The Evidence Is Legally and Factually Sufficient to Prove Capital Murder

       We review the legal and factual sufficiency of the evidence supporting a conviction under

well-established standards. In conducting a legal sufficiency review, we consider the evidence in

the light most favorable to the verdict to determine whether any rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt. Laster v. State, 275 S.W.3d

512, 517 (Tex. Crim. App. 2009). We must give deference to ―the responsibility of the trier of

fact to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable



                                                 7
inferences from basic facts to ultimate facts.‖ Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim.

App. 2007) (citing Jackson v. Virginia, 443 U.S. 307, 318–19 (1979)). We are not required to

determine whether we believe that the evidence at trial established guilt beyond a reasonable

doubt; rather, when faced with conflicting evidence, we must presume that the trier of fact resolved

any such conflict in favor of the prosecution, and we must defer to that resolution. State v. Turro,

867 S.W.2d 43, 47 (Tex. Crim. App. 1993). In conducting a factual sufficiency review, we

consider the evidence in a neutral light. Watson v. State, 204 S.W.3d 404, 414–15 (Tex. Crim.

App. 2006).

       We may find evidence factually insufficient if (1) the evidence supporting the conviction is

―too weak‖ to support the fact-finder’s verdict, or (2) considering conflicting evidence, the

fact-finder’s verdict is against the great weight and preponderance of the evidence. Laster, 275

S.W.3d at 518. In so doing, we may find the evidence insufficient when necessary to prevent

manifest injustice. Id. Although we give less deference to the verdict in a factual sufficiency

review, we will not override the verdict simply because we disagree with it. Id. Both legal and

factual sufficiency are measured by the elements of the offense as defined by a hypothetically-

correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997); see also Grotti

v. State, 273 S.W.3d 273, 280 (Tex. Crim. App. 2008).

       Under a hypothetically-correct charge, the jury was required to find, beyond a reasonable

doubt, that (1) Trotman (2) on or about the 12th day of November, 2007, (3) intentionally and



                                                 8
knowingly (4) caused Ryan’s death (5) by cutting and/or stabbing him with a knife, and (5) Ryan’s

murder was committed intentionally in the course of committing or attempting to commit a

robbery. Trotman takes issue only with respect to the final element—that Ryan’s murder was

committed intentionally in the course of committing or attempting to commit a robbery.

       Section 19.03(a)(2) of the Texas Penal Code provides that a person commits capital murder

if the person commits murder and the person ―intentionally commits the murder in the course of

committing or attempting to commit . . . robbery . . . .‖ TEX. PENAL CODE ANN. § 19.03(a)(2)

(Vernon Supp. 2009). Section 29.02(a) of the Texas Penal Code states that a person commits

robbery if the person, in the course of committing a theft, ―(1) intentionally, knowingly or

recklessly causes bodily injury to another; or (2) intentionally or knowingly threatens or places

another in fear of imminent bodily injury or death.‖ TEX. PENAL CODE ANN. § 29.02(a) (Vernon

2003). Trotman maintains that, because the primary evidence for the allegation of robbery is

Glenisha’s testimony, and her testimony is filled with errors and contradictions, the evidence is

legally and factually insufficient to support the verdict.

       Glenisha testified that, while she stood in the doorway of her brother’s home on the

evening of his murder, she and Ryan—who was in another room of the house—were talking to

each other. Glenisha did not see anyone on the porch when she came into Ryan’s house, and she

never heard Trotman behind her. Trotman caught Glenisha off guard, came at her from behind

with a knife in his hand, and told her to ―give me the . . . money.‖ When Glenisha replied that she



                                                  9
had no money, Trotman again demanded that she give him money. Again, Glenisha indicated

that she had no money. Trotman demanded money yet a third time, and told Glenisha to put the

money in his bag.       Glenisha replied that she was unemployed and that she could not give him

something she did not have. She could see a knife in Trotman’s hand as he was standing behind

her so closely that he was touching her. Trotman was holding a bag and demanded ―give me the

. . . money and put it in the bag.‖

        Glenisha struggled with Trotman, attempting to pull away the ―do-rag‖ scarf that covered

his lower face. During the struggle, Glenisha broke her nails down to the quick. Upon hearing

the commotion, Ryan came to Glenisha’s defense with a baseball bat, and the three struggled and

ended up fighting in the hallway and in the bedroom, where the stabbing occurred. Trotman fled

the scene, and Glenisha was able to find a telephone to contact police.

        To dispute the robbery allegation, Trotman points out the errors and contradictions of

Glenisha’s testimony. While Glenisha testified that she struggled with Trotman and broke her

fingernails scratching his face, the DNA report revealed that Glenisha’s fingernail scrapings

excluded Trotman as the source of the DNA.5 Trotman also points out that Glenisha testified that

he held the knife in his left hand, but she did not see anything in his right hand. In contradiction to

this, Glenisha later testified that Trotman carried a bag during the robbery. While Glenisha



5
 The DNA report excludes Trotman as a contributor to the right-hand fingernail clippings from Glenisha. The report
does not indicate fingernail clippings were taken from Glenisha’s left hand.


                                                       10
claims she was injured by the knife Trotman wielded, DNA analysis failed to confirm this claim.6

No property or cash was alleged to have been taken from Glenisha or Ryan.

        Finally, Trotman argues that, while Glenisha testified that Trotman was behind her in the

hallway pushing her forward during the attack, she also testified that Ryan tripped and fell over a

cord in the bedroom and Trotman fell on top of him. Having also tripped, Glenisha fell on

Trotman. Trotman maintains that this scenario is only possible if Trotman was in front of

Glenisha, rather than behind her. We point out, however, that Glenisha’s testimony, read in

context, reveals that the struggle between her and Trotman was moving in the direction of the

hallway, and Ryan met them coming out of the bathroom. Ryan then grabbed a bat, and the three

struggled in the hallway. The written record contains the oral description of the struggle and does

not supply the precision one might get from a video recording. There is simply no way to know

the precise details of how the struggle took place and who was behind whom at any given point

during that struggle.

        The State contends the evidence is sufficient to establish beyond a reasonable doubt that

Trotman intentionally murdered Ryan in the course of committing or attempting to commit a

robbery. Judging from the condition of the house after the murder, it was obvious there had been

a struggle. Pictures had been knocked off the wall, and the floor was littered with broken glass.

        Glenisha testified that Trotman attempted to commit robbery as he came through the door

6
 Two knives were found at the scene; one was located on the floor at the entrance to the bedroom and the second was
located on the floor near the aquarium in the living room area. Only one knife was subjected to DNA testing. This
knife was the murder weapon; DNA testing showed that this knife contained Ryan’s blood.

                                                        11
of Ryan’s house with a knife in one hand and a bag in the other yelling, ―give me the . . . money‖

and ―put it in the bag.‖ She was frightened because Trotman held the knife close to her body

while demanding money. The knife with which Trotman threatened Glenisha was the same knife

used to murder Ryan.

       The State also relies on the testimony of Latisha Jones in support of its contention that the

evidence is sufficient to prove beyond a reasonable doubt that Trotman intentionally murdered

Ryan in the course of committing or attempting to commit a robbery. Jones lives in Greenville

and met Trotman only a few months before the murder. Trotman was living in Dallas, and Jones

would drive to Dallas and pick him up on weekends to stay with Jones at her home in Greenville.

       Jones knew Ryan—he was a distant relative. She also considered Ryan to be a friend.

Jones saw Ryan on the Friday and Saturday before the murder when she went to his home to

purchase marihuana. Trotman accompanied her on both occasions, but did not go inside Ryan’s

house. As far as Jones knew, Trotman and Ryan did not know one another.

       On the evening of the murder, Jones planned to go to her aunt’s house to get something for

her headache; Trotman accompanied her. When they arrived at the home of Jones’ aunt, Trotman

stayed in the car. When Jones returned to the car, Trotman was gone. After visiting with her

aunt a bit longer, Jones and her aunt walked outside, where they spotted Trotman running from

around the corner. Trotman got in the passenger side of the car while telling Jones to ―Drive,

Tish. Drive.‖ He was winded and told Jones not to return home via the same route (which would



                                                12
take them past Ryan’s house). When Jones asked Trotman what was going on, he told her, ―I

tried to get that nigger. It was time to eat.‖ Jones stopped the car and asked Trotman what he

tried to do and he said it was time to eat—she thought he meant he tried to rob somebody.

Trotman told Jones that he poked Ryan with a knife he had taken from her kitchen and that, since

he told her what happened, he was going to have to kill her and her children. Jones fully believed

he was capable of doing that. The police came to Jones’ house twice that night to investigate

Trotman’s role in the murder and arrested Trotman that same night.

       Trotman claims that the foregoing evidence is both legally and factually insufficient to

prove the element of robbery to support the charge of capital murder. We disagree. When

considering this evidence in the light most favorable to the verdict, we conclude that a rational trier

of fact could have found the essential elements of the crime—in particular, the element of

robbery—beyond a reasonable doubt. See Laster, 275 S.W.3d at 517. Further, and upon

objective review of the record, we cannot conclude that the evidence supporting the verdict is so

weak as to be clearly wrong or manifestly unjust. We do not find the verdict to be against the

great weight and preponderance of the conflicting evidence. We therefore conclude that the

evidence is legally and factually sufficient to support the verdict of guilt. Trotman’s legal and

factual insufficiency points of error are overruled.

(3)    The Trial Court Did Not Err in Failing to Instruct the Jury on Self-Defense

       A defendant is entitled to an instruction on self-defense if the issue is raised by the



                                                  13
evidence, whether that evidence is strong or weak, unimpeached or contradicted, and regardless of

what the trial court may think about the credibility of the defense. Ferrel v. State, 55 S.W.3d 586,

591 (Tex. Crim. App. 2001); Guilbeau v. State, 193 S.W.3d 156, 159 (Tex. App.—Houston [1st

Dist.] 2006, pet. ref’d). Before a defendant is entitled to a self-defense instruction, however, there

must be some evidence, when viewed in the light most favorable to the defendant, that will support

the claim. Ferrel, 55 S.W.3d at 591; Hill v. State, 99 S.W.3d 248, 250 (Tex. App.—Fort Worth

2003, pet. ref’d). Thus, entitlement to a self-defense instruction is predicated on the provision of

some evidence that the defendant was authorized to use force against another. ―[A] defense is

supported (or raised) by the evidence if there is some evidence, from any source, on each element

of the defense that, if believed by the jury, would support a rational inference that that element is

true.‖ Shaw v. State, 243 S.W.3d 647, 657–58 (Tex. Crim. App. 2007). A defendant need not

testify in order to raise a defense. Boget v. State, 40 S.W.3d 624, 626 (Tex. App.—San Antonio

2001), aff’d, 74 S.W.3d 23, 26 (Tex. Crim. App. 2002). Defensive issues may be raised by the

testimony of any witness, even those called by the State. Jackson v. State, 110 S.W.3d 626, 631

(Tex. App.—Houston [14th Dist.] 2003, pet. ref’d). When reviewing a trial court’s decision to

deny a requested defensive instruction, ―we view the evidence in the light most favorable to the

defendant’s requested submission.‖ Bufkin v. State, 207 S.W.3d 779, 782 (Tex. Crim. App.

2006).   However, ―if the evidence, viewed in the light most favorable to the defendant, does not

establish self-defense, the defendant is not entitled to an instruction on the issue.‖ Ferrel, 55



                                                 14
S.W.3d at 591.

       Trotman argues that the trial court should have included an instruction on self-defense in

the charge, in light of the evidence raised on that issue. He directs our attention to the following

evidence: (1) two knives found at the Rhoden house, only one being the weapon used on Ryan;

(2) Jones’ testimony that, when Trotman returned to her car that evening, he was bleeding and told

Jones that someone hit him in the head with a baseball bat and that he ―poked‖ that person with a

knife; (3) Jones’ testimony that Trotman had cuts and injuries to his hands that were not there

earlier that day; (4) testimony of Dr. Reade Quinton, the Dallas County medical examiner, that

Ryan suffered injuries to his lower legs and the bottom of his foot, which injuries could have been

caused by stepping or stomping on the knife; and (5) Quinton’s testimony that Ryan’s fatal chest

wound was not inconsistent with the theory that it could have been delivered by someone on the

floor (at a lower angle) than Ryan. When the foregoing evidence is analyzed in light of the

requirement that some evidence must be raised on each element of the defense, we conclude the

trial court was correct in its decision that an instruction on self-defense was not warranted.

Section 9.31 of the Texas Penal Code provides, in part, that ―a person is justified in using force

against another when and to the degree the actor reasonably believes the force is immediately

necessary to protect the actor against the other’s use or attempted use of unlawful force.‖ TEX.

PENAL CODE ANN. § 9.31(a) (Vernon Supp. 2009). Moreover, Section 9.32 of the Texas Penal

Code provides:



                                                15
          (a)    A person is justified in using deadly force against another:

                 (1) if the actor would be justified in using force against the other under
                 Section 9.31; and

                 (2) when and to the degree the actor reasonably believes the deadly force
                 is immediately necessary:

                       (A) to protect the actor against the other’s use or attempted use of
                  unlawful deadly force; or

                        (B) to prevent the other’s imminent commission of aggravated
                 kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or
                 aggravated robbery.

TEX. PENAL CODE ANN. § 9.32(a) (Vernon Supp. 2009).

          The record is devoid of evidence that Trotman reasonably believed the use of force was

immediately necessary to protect himself from the use or attempted use of unlawful deadly force,

or to prevent the commission of any of the offenses listed in Section 9.32 of the Texas Penal Code.

Instead, the facts here indicate that Trotman burst into Ryan’s home, wielding a butcher knife and

demanding money.7 The evidence does indicate that Ryan hit, or attempted to hit, Trotman with a

baseball bat. The evidence also reveals that Ryan seized the bat in order to defend himself and his

sister from Trotman’s violent, and ultimately deadly, attack.                   Under these circumstances,

Trotman was not entitled to an instruction on self-defense. This point of error is overruled.

    (4)   The Failure to Request a Jury Instruction on the Lesser-Included Offense of Murder Did
          Not Render Trotman’s Trial Counsel Ineffective

7
 The use of force is not presumed to be reasonable when the actor was otherwise engaged in criminal activity (other
than a class C misdemeanor) at the time the force was used. TEX. PENAL CODE ANN. § 9.31(a)(3) (Vernon Supp.
2009).

                                                        16
       Trotman also contends that his trial counsel provided deficient assistance because he failed

to request an instruction on the lesser-included offense of murder. Trotman further contends that

his counsel’s deficient performance probably caused the jury to return a verdict of capital murder

rather than murder. Trotman raised this ineffective assistance claim on direct appeal, arguing that

trial counsel should have requested a lesser-included offense charge as it would apply to the

offense of murder.

       The standard of testing claims of ineffective assistance of counsel is set out in Strickland v.

Washington, 466 U.S. 668 (1984). To prevail on this claim, an appellant must prove by a

preponderance of the evidence (1) that his or her counsel’s representation fell below an objective

standard of reasonableness and (2) that the deficient performance prejudiced the defense. Id. at

689; Rosales v. State, 4 S.W.3d 228, 231 (Tex. Crim. App. 1999). To meet this burden, an

appellant must prove that the attorney’s representation fell below the standard of prevailing

professional norms and that there is a reasonable probability that, but for the attorney’s deficiency,

the result of the trial would have been different. Ex parte Martinez, 195 S.W.3d 713, 730 (Tex.

Crim. App. 2006); Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000). Under this

standard, a claimant must prove that counsel’s representation so undermined the proper

functioning of the adversarial process that the trial cannot be relied on as having produced a just

result. Strickland, 466 U.S. at 686.

       To establish his claim that trial counsel’s performance was deficient for failing to request


                                                 17
an instruction, Trotman must first show that he was entitled to an instruction on the lesser-included

offense of murder. See Kinnamon v. State, 791 S.W.2d 84, 97 (Tex. Crim. App. 1990) (since

evidence did not authorize submission of murder instruction as lesser-included offense appellant’s

trial counsel was not ineffective for failing to request it), overruled on other grounds by Cook v.

State, 884 S.W.2d 485 (Tex. Crim. App. 1994) (en banc). To establish he was entitled to an

instruction on murder, Trotman must establish that murder is a lesser-included offense of capital

murder and that there was evidence that, if guilty of an offense, Trotman was guilty only of

murder. See Rousseau v. State, 855 S.W.2d 666, 672 (Tex. Crim. App. 1993).

       Because murder is a lesser-included offense of capital murder, the relevant inquiry is

whether there is some evidence that Trotman is guilty of only the lesser offense. See Havard v.

State, 800 S.W.2d 195, 216 (Tex. Crim. App. 1990); Aguilar v. State, 682 S.W.2d 556 (Tex. Crim.

App. 1985). In the factual setting of the instant case, the relevant inquiry is whether there is

conflicting evidence concerning whether Trotman killed Ryan in the course of committing or

attempting to commit a robbery. See TEX. PENAL CODE ANN. § 19.03(a)(2) (defining capital

murder as murder committed in course of robbery or attempted robbery). We have previously

discussed the evidence in support of Trotman’s capital murder conviction, i.e., that Trotman killed

Ryan while in the course of committing or attempting to commit a robbery. We now consider

whether there is any evidence that Trotman merely killed Ryan and did not rob or attempt to rob

him.



                                                 18
         Trotman contends that his entire defense was premised on the concept that he did not go to

Ryan’s home to rob him; rather, he went there to purchase drugs, and the transaction, for whatever

reason, went bad. Rather than claiming the existence of evidence that contradicts the robbery or

attempted robbery allegation, Trotman merely claims the evidence of the aggravating

circumstance of robbery was so weak that the jury could not have found that element of capital

murder beyond a reasonable doubt.8 Glenisha testified that Trotman burst into the house with a

knife drawn, threatening her and demanding money. Trotman also admitted to Jones that he went

to Ryan’s house to commit a robbery.             In addition, the jury heard testimony regarding Trotman’s

plan for the robbery.9 Nothing in the record contradicts this evidence. Although Trotman calls

into question the strength of this evidence, a challenge to the strength of such evidence does not

lower the threshold of conflicting evidence required to receive a lesser-included-offense

instruction. Because there is no record evidence to contradict the evidence of attempted robbery,

Trotman was not entitled to a jury instruction on the lesser-included offense of murder. Cf.

Robertson v. State, 871 S.W.2d 701 (Tex. Crim. App. 1993) (affirming capital murder conviction
8
 We have previously determined that the evidence here is legally and factually sufficient to support the capital murder
conviction.
9
 This evidence included the fact that Trotman insisted on riding with Jones to her aunt’s house November 12, 2007.
While Jones was inside her aunt’s house, Trotman left without telling her where he was going. Jones saw Trotman
arrive back at the car running from around the corner, coming from the direction of Rhoden’s house. Trotman took
the knives, bag, and mask with him to commit the intended robbery. He later admitted to Jones that he hid the knife
he had taken from her kitchen up the sleeve of his bulky coat so she would not see it on her way to her aunt’s house.
The mask worn by Trotman to cover his face was later recovered from Jones’ house, along with the clothing Trotman
wore during the crime. Jones also identified the bag with Rhoden’s blood on it recovered from the crime scene as
Trotman’s bag that he brought from Dallas. Trotman returned to the car and ordered Jones to drive away. He also
instructed Jones to call her aunt and tell her that Jones did not know the man who hopped into her car at her aunt’s
house. Trotman indicated that, because Jones knew what happened, he would have to kill her and her children.

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after examining sufficiency of evidence that defendant killed in course of robbing or attempting to

rob victim).

       Because the evidence did not authorize the submission of a murder instruction as a

lesser-included offense, Trotman’s trial counsel was not ineffective for failing to request it.

However, even if the record before us contained evidence to contradict the evidence of attempted

robbery, we would nevertheless be compelled to draw the same conclusion.                Indeed, the

presumption that trial counsel’s performance was reasonably based in sound trial strategy, coupled

with the absence of any supporting evidence in the record of unreasonableness, compels a

reviewing court to consider ways in which trial counsel’s actions were within the bounds of

professional norms.    Mata v. State, 226 S.W.3d 425, 431 (Tex. Crim. App. 2007). Any number

of possibilities can be imagined here. For example, trial counsel’s trial strategy was to convince

the jury that this was a drug deal gone awry. Because this theory required Trotman to be present

at the scene during the crime, it is conceivable that trial counsel did not request an instruction on

murder because the testimony and physical evidence, including DNA testing, showed that

Trotman killed Ryan.

       Ineffectiveness of counsel is a matter that must be firmly founded in the record, and the

record must affirmatively demonstrate the alleged ineffectiveness. Smith v. State, 51 S.W.3d 806,

812 (Tex. App.—Texarkana 2001, no pet.). In the absence of such a record, and in the lack of

anything that would indicate such completely ineffective assistance as could be shown without



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such a record, we overrule the point of error.10

         We affirm the judgment of the trial court.




                                                               Josh R. Morriss, III
                                                               Chief Justice

Date Submitted:            June 28, 2010
Date Decided:              July 7, 2010

Do Not Publish




10
 Under normal circumstances, the record on direct appeal will not be sufficient to show that counsel’s representation
was so deficient and so lacking in tactical or strategic decision-making as to overcome the presumption that counsel’s
conduct was reasonable and professional. Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001).

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