                                  NO. 12-19-00037-CR

                          IN THE COURT OF APPEALS

               TWELFTH COURT OF APPEALS DISTRICT

                                     TYLER, TEXAS

 YAVON BRYDON,                                     §      APPEAL FROM THE 114TH
 APPELLANT

 V.                                                §      JUDICIAL DISTRICT COURT

 THE STATE OF TEXAS,
 APPELLEE                                          §      SMITH COUNTY, TEXAS

                                  MEMORANDUM OPINION
       Yavon Brydon appeals her conviction for robbery. In a single issue, she contends she
received ineffective assistance of counsel at trial. We affirm.


                                          BACKGROUND
       On April 23, 2018, Appellant attempted to leave a Tyler, Texas Dollar General store with
approximately $120 in merchandise without paying for it. She was confronted by the store
manager who had been watching her via closed-circuit television. During the confrontation,
physical contact occurred between Appellant and the store manager. The manager claimed
Appellant pushed him and scratched him as she attempted to flee. Appellant argued that she did
not assault the manager and that she scratched his neck in an attempt to break her fall after the
manager pushed her.
       Appellant was charged by indictment with robbery. She pleaded “not guilty” and the
matter proceeded to a jury trial. Following evidence and argument, the jury found Appellant
“guilty” and sentenced her to twelve years imprisonment. This appeal followed.
                              INEFFECTIVE ASSISTANCE OF COUNSEL
        In her sole issue, Appellant contends she received ineffective assistance of counsel when
trial counsel failed to request a jury instruction for the lesser-included offense of theft.
Governing Law
        In reviewing an ineffective assistance of counsel claim, we apply the United States
Supreme Court’s two-pronged test established in Strickland v. Washington, 466 U.S. 668, 104 S.
Ct. 2052, 80 L. Ed. 2d 674 (1984); Hernandez v. State, 726 S.W.2d 53, 56–57 (Tex. Crim. App.
1986). To prevail on an ineffective assistance of counsel claim, an appellant must show that (1)
trial counsel’s representation was deficient, and (2) the deficient performance prejudiced the
defense to the extent that there is a reasonable probability that the result of the proceeding would
have been different but for trial counsel’s deficient performance. Strickland, 466 U.S. at 687, 104
S. Ct. at 2064. An appellant must prove both prongs of Strickland by a preponderance of the
evidence. Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2002). Failure to make the required
showing of either deficient performance or sufficient prejudice defeats an appellant’s
ineffectiveness claim. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).
        To establish deficient performance, an appellant must show that trial counsel’s
representation fell below an objective standard of reasonableness under prevailing professional
norms. See Strickland, 466 U.S. at 687–88, 104 S. Ct. at 2064–65. “This requires showing that
[trial] counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed
the defendant by the Sixth Amendment.” Id., 466 U.S. at 687, 104 S. Ct. at 2064. To establish
prejudice, an appellant must show that there is a reasonable probability that, but for counsel’s
deficient performance, the result of the proceeding would have been different. Id., 466 U.S. at
694, 104 S. Ct. at 2068. A reasonable probability is a probability sufficient to undermine
confidence in the outcome. Id. When it is easier for a reviewing court to dispose of an ineffective
assistance of counsel claim on the ground of lack of sufficient prejudice without determining
whether counsel’s performance was deficient, the court should follow that course. Id., 466 U.S. at
697, 104 S. Ct. 2069.
        Review of trial counsel’s representation is highly deferential. See id., 466 U.S. at 689, 104
S. Ct. at 2065. In our review, we indulge a strong presumption that trial counsel’s actions fell
within a wide range of reasonable and professional assistance. Id. It is the appellant’s burden to
overcome the presumption that, under the circumstances, the challenged action might be



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considered sound trial strategy. Id.; Tong, 25 S.W.3d at 712. Moreover, “[a]ny allegation of
ineffectiveness must be firmly founded in the record, and the record must affirmatively
demonstrate the alleged ineffectiveness.” Thompson, 9 S.W.3d at 813 (citation omitted). When,
as here, no record specifically focusing on trial counsel’s conduct was developed at a hearing on a
motion for new trial, it is extremely difficult to show that counsel’s performance was deficient.
See Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002); Thompson, 9 S.W.3d at 814.
Absent an opportunity for trial counsel to explain the conduct in question, we will not find deficient
performance unless the challenged conduct was “so outrageous that no competent attorney would
have engaged in it.” Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005) (citation
omitted).
Evaluation of Trial Counsel’s Representation
       On appeal, Appellant alleges that her attorney’s performance at trial fell below the
professional norm because he failed to request that the trial court include an instruction for the
lesser-included offense of theft in the jury charge. She acknowledges conceding at trial that she
committed theft, which necessarily raised the issue of the lesser-included offense.
       Assuming without deciding that a lesser-included offense instruction would have been
permissible, the record does not reflect why trial counsel did not request a lesser-included offense
instruction on theft. Trial counsel may have chosen not to request the lesser-included offense
instruction because he believed that the jury would acquit Appellant of the charged offense of
robbery. Davis v. State, 930 S.W.2d 765, 768 (Tex. App.—Houston [1st Dist.] 1996, pet. ref’d)
(it is a reasonable trial strategy to not request a charge on a lesser-included offense); see Ex parte
White, 160 S.W.3d 46, 55 (Tex. Crim. App. 2004) (holding counsel not ineffective for failure to
request lesser-included offense because all-or-nothing approach was strategy decision). Because
the decision not to request the lesser-included offense instruction may have been strategic, and the
record is silent regarding counsel’s reasons, Appellant has not shown deficient performance. See
Washington v. State, 417 S.W.3d 713, 726 (Tex. App.—Houston [14th Dist.] 2013, pet. ref’d)
(determining that, because record contained no explanation for trial counsel’s failure to request
lesser-included offense instruction, “[t]he decision to not request a lesser included could have been
strategic; thus, appellant has failed to show deficient performance”); Green v. State, No. 01-18-
00162-CR, 2019 WL 2621738, at *8 (Tex. App.—Houston [1st Dist.] June 27, 2019, pet. ref’d)
(mem. op., not designated for publication).



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         Accordingly, under the circumstances of this case, we conclude that Appellant failed to
rebut the presumption that trial counsel’s actions and decisions were reasonably professional and
motivated by sound trial strategy. See Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; see also
Tong, 25 S.W.3d at 712; Thompson, 9 S.W.3d at 813; Perez v. State, 56 S.W.3d 727, 731-32 (Tex.
App.—Houston [14th Dist.] 2001, pet. ref’d). Appellant’s issue is overruled.


                                                  DISPOSITION
         Having overruled Appellant’s sole issue, we affirm the trial court’s judgment.


                                                                JAMES T. WORTHEN
                                                                   Chief Justice



Opinion delivered October 31, 2019.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                             (DO NOT PUBLISH)



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                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                          OCTOBER 31, 2019


                                         NO. 12-19-00037-CR


                                        YAVON BRYDON,
                                            Appellant
                                               V.
                                      THE STATE OF TEXAS,
                                            Appellee


                                Appeal from the 114th District Court
                         of Smith County, Texas (Tr.Ct.No. 114-0859-18)

                       THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                       It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court below
for observance.
                    James T. Worthen, Chief Justice.
                    Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
