In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-12-00105-CR
DEVIN EUGENE ROYAL, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 196th District Court
Hunt County, Texas
Trial Court No. 27,634
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Justice Moseley
MEMORANDUM OPINION
On June 21, 2012, a jury found Devin Eugene Royal guilty of the murder of Javon
Newman. The jury sentenced Royal to life imprisonment in the Texas Department of Criminal
Justice–Correctional Institutions Division. 1
On appeal, Royal argues that he was denied effective assistance of counsel because his
trial counsel failed to object to testimony that Royal belonged to a gang or to subsequent
comments about that testimony.
The particular situation about which Royal complains occurred during the examination of
Raymond Curtis Ware, II, who had been called by the State as a witness during the
guilt/innocence phase of the trial. Ware’s testimony established that Ware and Royal had been
simultaneously incarcerated in the Hunt County jail. Ware had been called to testify concerning
some statements Ware said had been made by Royal during that incarceration. During direct
examination by the State, the following exchange occurred:
Q. Did [Royal] tell you -- Well, you say he was really talking to
somebody else.
A. He was talking to Terrence. That was his home boy. It was like
OG or something. They were both bloods.
Q. Just tell the jury what is an OG or a blood?
A. I guess blood is a gang member. He’s a member.
1
Royal’s punishment was enhanced due to repeat-offender status.
2
This reference to Royal’s participation in a gang did not lie isolated. During its closing
arguments, the State made reference to this testimony regarding Royal’s membership in a gang
as follows:
And then all of this, all these ingredients created one dangerous person. All of
these elements, doing the street life thing. And you remember the testimony, he’s
a member of the bloods. That was the testimony from the guy yesterday,
Mr. Wear [sic]. Gang life, he does that. First degree murder of Javon Newman.
Royal contends that he was denied effective assistance of counsel because his trial
counsel failed to object to Ware’s testimony as it pertained to Royal’s membership in a gang.
Royal claims that this testimony was irrelevant pursuant to Rule 402 of the Texas Rules of
Evidence and was impermissible character evidence prohibited by Rule 404 of the Texas Rules
of Evidence. 2 The record reflects that trial counsel lodged no objection to this testimony, made
no request for a limiting instruction, and did not demand a mistrial.
The standard of review for evaluating claims of ineffective assistance of counsel is set
forth in Strickland v. Washington, 466 U.S. 668 (1984). Royal must show that (1) counsel’s
performance was so deficient that he was not functioning as acceptable counsel under the Sixth
Amendment and (2) but for counsel’s error, the result of the proceedings would have been
different. Id. at 687–88; see also Gamble v. State, 916 S.W.2d 92, 93 (Tex. App.—Houston [1st
Dist.] 1996, no pet.).
However, since there was no motion for new trial filed and no evidence developed on this
issue, the record is silent as to why counsel did not object to the gang membership testimony and
2
Although Royal’s brief refers to the gang membership testimony as evidence of an extraneous offense,
“membership in a gang is not necessarily evidence of an extraneous offense.” Anderson v. State, 901 S.W.2d 946,
948 (Tex. Crim. App. 1995).
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whether this omission was a strategic or tactical decision. This silent record does not
affirmatively support Royal’s claim of ineffective assistance of counsel. See Johnson v. State,
691 S.W.2d 619, 627 (Tex. Crim. App. 1984).
There is a strong presumption that trial counsel’s performance fell within the wide range
of reasonable professional assistance. Strickland, 466 U.S. at 690. To prevail on an ineffective
assistance of counsel claim, appellant must overcome the presumption that under the
circumstances, the challenged action might be considered sound trial strategy. Id. Assertions of
ineffective assistance of counsel must be firmly founded in the record. Bone v. State, 77 S.W.3d
828, 835 (Tex. Crim. App. 2002). In the absence of a record reference concerning counsel’s
reasoning, we must generally presume that appellant’s trial counsel had a plausible reason for his
actions. Thompson v. State, 9 S.W.3d 808, 816 n.3 (Tex. Crim. App. 1999). Royal has failed to
provide us with any record from which we can conclude that his counsel did not have a plausible
reason for not having raised an objection to that testimony.
One could take into account that many capable attorneys would consider that making an
objection to such a passing mention of gang membership would have done more harm to Royal’s
cause than good and (despite possible instructions by a trial judge to the jury instructing it to
disregard such a statement) would call undue attention to the statement. Those subscribing to
this theory would likely hold the belief that going through the steps necessary to preserve error
regarding the testimony would be tantamount to mankind asking Pandora to open the box a
second time to ensure that any unreleased evil lurking behind in it might be freed. Royals’ point
of error is overruled.
4
We affirm the trial court’s judgment.
Bailey C. Moseley
Justice
Date Submitted: January 28, 2013
Date Decided: January 29, 2013
Do Not Publish
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