## Facts

- Tyra Ann Whitney’s adult daughter, Tashira, had a relationship with the victim marked by frequent, sometimes violent fights.
- After an altercation, Tashira called Whitney, who drove to Tashira’s apartment.
- A neighbor saw Whitney approach the apartment carrying a hammer.
- Whitney entered through an unlocked front door and encountered the victim in a bedroom as he gathered belongings.
- Whitney and the victim argued; Tashira briefly closed the bedroom door between them.
- The victim reopened the door and approached Whitney; Whitney threw a cup of bleach-water in his face.
- The victim fell; Whitney struck him in the head with the hammer, causing fatal injuries.
- Whitney claimed she acted in defense of her daughter (and in self-defense/defense of others).
- A jury convicted Whitney of murder, found she acted under sudden passion, and assessed 15 years’ confinement.

## Issues

1. Whether an indigent defendant with appointed counsel has a right to insist that preferred co-counsel actively participate at trial.
2. Whether a jury instruction stating there is “no duty to retreat” if specified statutory conditions are met improperly implies a broader duty to retreat.
3. Whether the trial court abused its discretion by denying a mistrial after sustaining an objection to a portion of the prosecutor’s closing argument and instructing the jury to disregard it.

## Decision

- The court affirmed the murder conviction and 15-year sentence.
- The trial court did not err by refusing to allow active participation by an additional attorney where Whitney was already represented by court-appointed counsel.
- The no-duty-to-retreat instruction was proper because it tracked the Texas Penal Code and did not misstate the law.
- The trial court did not abuse its discretion in denying a mistrial; the instruction to disregard was an adequate cure given the limited severity of the remark and the strength of the evidence.

## Legal Principles

- An indigent defendant is entitled to effective assistance of counsel but does not have an absolute right to choose appointed counsel or demand participation by preferred co-counsel; trial courts retain discretion over additional attorney participation.
- A no-duty-to-retreat instruction that follows the governing self-defense statute is not erroneous merely because it states conditions under which retreat is not required.
- Review of a denied mistrial for improper jury argument considers: (1) the severity of the misconduct, (2) curative measures, and (3) the certainty of conviction absent the misconduct; juries are generally presumed to follow instructions to disregard.

## Conclusion

The appellate court upheld Whitney’s murder conviction, concluding that the trial court acted within its discretion in limiting participation by additional counsel, correctly instructed the jury on the statutory no-duty-to-retreat rule, and reasonably denied a mistrial after giving a curative instruction regarding the prosecutor’s closing argument.


Whitney v. State, 396 S.W.3d 696 (Tex. App.—Fort Worth 2013, pet. ref’d)