Kevin Ashley Parnell v. State

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________

No. 02-19-00070-CR
___________________________

KEVIN ASHLEY PARNELL, Appellant

V.

THE STATE OF TEXAS

On Appeal from the 396th District Court
Tarrant County, Texas
Trial Court No. 1513054D

Before Birdwell, Bassel, and Wallach, JJ.
Memorandum Opinion by Justice Wallach
 MEMORANDUM OPINION

Appellant Kevin Ashley Parnell pled not guilty to murdering Sammie Jones and

guilty to tampering with evidence. A jury convicted Appellant of both offenses, rejected

his sudden-passion claim and the State’s hate-crime enhancement allegation, and

assessed his punishment at forty-six years’ and two years’ confinement, respectively. See

Tex. Code Crim. Proc. Ann. art. 42.014; Tex. Penal Code Ann. §§ 12.32(a), 12.34(a),

12.47(a), 19.02(a)(2), (b)(1)–(2), (c)–(d), 37.09(a)(1), (c). The trial court sentenced him

accordingly. Appellant raises two appellate issues. In his first issue, he complains that

the trial court violated his Texas constitutional right to a jury of twelve persons by

retaining a juror who was not fluent enough in English to understand the proceedings.

In his second issue, Appellant argues that his defense counsel at trial was

constitutionally ineffective because he failed to diligently inquire in voir dire whether all

venire members were fluent in English. Because we hold that (1) Appellant invited any

error regarding the juror’s remaining on the panel and, alternatively, forfeited his right

to complain of the juror; and (2) Appellant did not satisfy his burden to prove

ineffective assistance of counsel, we affirm the trial court’s judgments.

I. Background Facts1

Appellant’s murdering Jones stemmed from the relationship between Appellant’s

Appellant does not challenge the sufficiency of the evidence supporting his
1

convictions. We therefore omit a detailed statement of facts.

2
stepdaughter Jordan Garrard and Jordan Briggs, Jones’s roommates. Garrard and

Briggs were friends in high school, and both lived with Appellant and his wife for a

short time thereafter. Garrard had a cocaine problem, and Briggs supplied her with

drugs. Briggs soon moved out, followed by Garrard after Appellant learned that she

had stolen from him. Briggs, Garrard, and Jones then became roommates.

A few days before Labor Day in 2017, Garrard was arrested for prostitution and

confined in jail. On Labor Day, Appellant started drinking early and drank all day. By

4:00 p.m., he had become angry about “everything that was going on” and Briggs’s

perceived role in destroying Appellant’s family. Appellant “blew up Facebook” with

messages to Briggs. The messages were laced with racial slurs and threats. Between

5:00 and 6:00 p.m., Appellant drove to the house Briggs, Jones, and Garrard shared,

parked in the driveway, and knocked on the door. Briggs hid and tried to persuade Jones

not to answer the door. Jones answered the door, he and Appellant exchanged words,

and “it got heated.” Appellant entered the home and shot Jones point-blank in the face,

killing him.

Fort Worth police later arrested Appellant, and in an interview, he confessed to

killing Jones and to throwing the gun in Lake Worth. He stated that he had never met

Jones but was “pretty sure he was one of the dealers too.”

Briggs testified that Appellant forced Garrard out of his home because she was

black, that Appellant was mad at him regarding Garrard’s incarceration because he was

3
black, and that he heard Appellant use racial slurs before he heard the gunshot that

killed Jones. Garrard testified that Briggs was not a truthful person.

II. Procedural Facts

This appeal focuses not on the facts of the offenses but on jury selection and the

retention of juror Raul Gonzalez. Before voir dire, because of the State’s hate-crime

allegation against Appellant, the prosecutor proposed that the supplemental juror

questionnaire include three questions about racial bias or prejudice:

6. Have you ever felt that you were the target of racial bias or
prejudice? □ YES □ NO If YES, tell us about this
experience:__________________________________________
7. If your child (or a child in your family) used a racial slur toward
another child at school, how would you handle it, and what would
you tell . . . them?_____________________________________
8. On a scale of 1 to 4, circle the number which represents how
strongly you agree or disagree with the following statement:
“In America, racial prejudice is not as big of a problem as some
would lead us to believe[.]”
Defense counsel objected:
[T]he open-endedness of some of these questions like question number
six, have you ever felt that you were the target of racial bias or
prejudice, . . . gives the venireman the opportunity to create answers that
might seem more contrived or to avoid their true feelings. And . . . it’s
been my experience in the past that people a lot of times speak differently
in public than they do in private . . . . [M]y next argument would be that
just about every minority person of color or female has probably
experienced in all probability some bias or prejudice at some point in time
in their life, and it’s just going to be used to amplify that issue in the
venireman’s mind before they actually get to the courtroom.

4
 And for those reasons, Judge, I think we would also say that most
of these questions are fairly simplistic in nature and could be answered
and covered in a[n] open question and answer with the venireman jury,
the actual public voir dire. And for those reasons, Judge, we would ask
that we would just go with the same jury questionnaire that we use in most
every case in this courtroom that provides basic information for the jurors,
the standard information that we use to make decisions every day in this
courthouse.
The trial court implicitly overruled defense counsel’s objection and included the

questions about race in the supplemental questionnaire. Gonzalez filled his jury

questionnaire out in English.

In voir dire, the parties did not generally question the venire members about their

ability to understand English, but the topic did arise. For example, during the trial

court’s portion of voir dire, the court listed reasons that a defendant might not want to

testify. One of those reasons was that the defendant might not “have an adequate

command of our language. You know, when you study English, it is a very difficult

language to learn. And then you put Texan on top of it? I mean, that is a double

whammy.” Additionally, in the State’s portion of voir dire, the prosecutor questioned

individual venire members, row by row. When it became her turn to answer the

question, venire member Patricia Terrazas instead stated, “My English understanding

is 80 percent, so I would feel bad because I don’t understand the case with something.”

The prosecutor asked Terrazas about her comprehension of spoken English only after

Terrazas volunteered information. Upon the prosecutor’s questioning, Terrazas then

indicated that she understood 80–85 percent of spoken English but did not understand

5
bias or prejudice. The prosecutor did not inquire generally or specifically about any other

venire member’s command of the English language. The parties agreed to excuse

Terrazas before the defense’s voir dire began.

In the defense’s voir dire, the topic of understanding English did not arise.

Defense counsel discussed the then current event involving Virginia’s governor and a

photograph from his 1984 medical school yearbook of a white man in black face that

some had alleged was the governor. Defense counsel asked the venire members, row

by row, whether the governor should be able to stay in office and redeem himself. When

his turn came, Gonzalez answered that he had “no opinion.” Gonzalez did not

volunteer during voir dire that he had trouble understanding English, and he ultimately

sat on the jury.

At the end of the first day of testimony, Gonzalez told a bailiff that he was

sometimes “having some trouble understanding some of the English.” Before the

second day’s testimony, in a hearing outside the jury’s presence, Gonzalez testified that

he

• had gone to the 9th grade in Mexico;

• had been in the United States almost 30 years;

• had learned English while working at his various jobs in the United States;

• had filled out his jury questionnaire himself, using a Google dictionary to
translate words he did not understand, such as rehabilitation, deterrence,
punishment, racial prejudice, and unlawful;

6
 • had had to say that he had no opinion when defense counsel asked him a
question in voir dire because he did not understand some of the words;

• understood only part of the concept of reasonable doubt that was discussed
in voir dire; and

• did not understand some of the first day’s testimony.
Gonzalez also said that he had understood what Terrazas (who sat next to him)

had said during voir dire about not understanding English, but he thought that “it would

not be that much talk or questions.” “[T]hat is why I say probably it’s going to be not

that much and it’s going to be my last day, but I don’t know this one continues. So it’s

more.” He also testified that the “talking” was “too fast.” In response to the

prosecutor’s questions, Gonzalez said that it would bother him a “little bit,” frustrate

him, and worry him that he might make the wrong decision when deliberating if he

could not understand everything going on in the courtroom.

After the trial judge, the prosecutor, and defense counsel questioned Gonzalez,

defense counsel moved for dismissal of Gonzalez from the jury and a mistrial on the

basis that Gonzalez had always been disqualified and had not become disabled after the

trial began, stated that he believed it was reversible error to proceed with eleven jurors,

and also stated that Appellant did not agree to go forward with eleven jurors. Through

more discussion with defense counsel, the trial court ascertained that defense counsel

was not asking that Gonzalez be excused or removed from the jury. The trial court

initially ruled that Appellant’s complaint was forfeited because it had not been raised in

voir dire and that Gonzalez would remain on the jury because no party had asked for

7
his removal. After a short break, defense counsel asked that Gonzalez be excused from

the panel and that a mistrial be granted on the grounds that only eleven jurors would

remain and that Appellant did not agree to go forward with only eleven jurors. The trial

court said that it could remove Gonzalez based on disability, not disqualification

(because Appellant had not preserved that issue), and then proceed with eleven jurors;

but the trial court explained that it would not grant a mistrial. The trial court stated,

I’m just saying from the status of the record I’m convinced that [the
disqualification ground] was not preserved. Now, we can go forward with
him or without him. Either way you would have your error—you would
have your potential point of error. So . . . if you want me to remove him,
I would remove him because he is disabled, not because he is disqualified.

Defense counsel replied, “Your Honor, we’d like to leave him on the jury.”

After the close of evidence in the guilt–innocence phase but before the trial court

charged the jury, defense counsel renewed the motion for mistrial outside the jury’s

presence and, for the first time, raised constitutional arguments:

Judge, on Monday, we voir dired a panel. At that time there were
approximately 70 jurors called, 67 or so appeared, and we had the
opportunity to voir dire on each side. There were several jurors
disqualified for cause. . . . Mr. Gonzalez was sitting next to a juror that
answered a question that the State asked her specifically whether or not
the juror sitting next to him understood what . . . was going on and she
said maybe 80, 85 percent. And by agreement that juror was struck.
The juror sitting next to . . . her, Juror Gonzalez, . . . after hearing
the first four witnesses on Monday afternoon[ and] after being empaneled
on the jury, . . . approached the deputy and explained that he was having
difficulty understanding what was going on.
The Court itself asked over 15 or 20 questions of Mr. Gonzalez
attempting to determine if he was understanding the proceedings. He was

8
 educated in Mexico, as the record will reflect. He had no U.S. education
whatsoever that he indicated. And he used a Spanish to English Google
dictionary, apparently, to come up with terminology that he didn’t
understand to translate.
That being the case, . . . [Article] 35.16[(a)](11) . . . would state that
juror that cannot read or write the English language . . . would be
disqualified[;] he was not disabled but he’s disqualified. He does not
qualify.
And based on the fact that this individual sat, listened to the
question of the juror . . . who sat next to him and did not speak up at the
time that . . . that . . . portion of the panel was questioned, we would think
that for that reason he was either intentionally dishonest or just didn’t
understand enough to be able to say that at that time that he wasn’t
understanding the proceedings.
So we believe that he was a not qualified juror from the very
beginning and he’s been seated on this panel and—on this jury and that
he is one of 12. He’s sitting outside the law; in other words, he should not
be on the panel and . . . we proceeded with 11 jurors. And we . . . objected
to proceeding with 11 jurors and we continue to object to proceeding with
11 jurors.
And we believe that violates our client’s Constitutional rights under
the Texas Constitution, Article 5, section 13, and the Texas Code of
Criminal Procedure 36.16 (sic), subsection 11. And . . . we are requesting
a mistrial at this time.
The trial court denied the motion.

Neither party requested that the jury be polled on its guilty verdicts. Defense

counsel requested that the jury be polled on its punishment verdicts. Gonzalez

answered “Yes” to the trial court’s question, “Raul Gonzalez, are these your verdicts?”

9
 III. Discussion

A. The Retention of Gonzalez on the Jury

In his first issue, Appellant contends that the trial court’s retaining Gonzalez on

the jury violated Appellant’s Texas constitutional right to a jury of twelve persons

because Gonzalez was not fluent enough in English to understand the proceedings.2

Appellant argues that this court should overrule Stillwell v. State, 466 S.W.3d 908 (Tex.

App.—Fort Worth 2015, no pet.); that the trial court should have removed Gonzalez

on the ground of disability without the parties’ consent; and that his constitutional claim

was not forfeited because he did not expressly waive it. The State responds that because

Appellant objected in the trial court that Gonzalez was disqualified, not disabled, his

complaint on appeal does not comport with his trial objection and is therefore forfeited;

that Appellant invited the alleged error by stating in the trial court that he was not

complaining that Gonzalez was disabled and that he wanted to proceed with Gonzalez

on the jury; and that Appellant forfeited his complaint during voir dire by not

sufficiently questioning and challenging Gonzalez about his ability to understand

English.

2
In his brief, Appellant contends, contrary to his argument in the trial court, that
the trial court should have removed Gonzalez from the jury and proceeded with eleven
jurors. His argument therefore seems to be that he was deprived of having a jury of
eleven jurors who were fluent in English. Nevertheless, we too will refer to the right to
a jury of twelve persons.

10
 1. Invited Error

Appellant invited any error regarding the trial court’s decision to leave Gonzalez

on the jury and is therefore estopped from complaining of it on appeal. The invited-

error doctrine prevents a party from taking advantage of an error that it invited or

caused, even if that error involves an absolute or waivable-only right. See Deen v. State,

509 S.W.3d 345, 348 n.6 (Tex. Crim. App. 2017); Woodall v. State, 336 S.W.3d 634, 644–

46 (Tex. Crim. App. 2011); Prystash v. State, 3 S.W.3d 522, 531 (Tex. Crim. App. 1999).

See generally Proenza v. State, 541 S.W.3d 786, 794 (Tex. Crim. App. 2017) (explaining that

what we used to call “fundamental errors” are now violations of category-one (absolute

rights) and category-two (waivable-only rights) under the framework provided in Marin

v. State, 851 S.W.2d 275, 279 (1993)).

In Jones v. State, 119 S.W.3d 766 (Tex. Crim. App. 2003), Lamon v. State,

463 S.W.3d 655 (Tex. App.—Texarkana 2015, no pet.), and Stoker v. State, No. 02-10-

00491-CR, 2011 WL 4414605 (Tex. App.—Fort Worth Sept. 22, 2011, pet. ref’d) (per

curiam) (mem. op., not designated for publication), the Court of Criminal Appeals, our

sister court in Texarkana, and this court, respectively, applied the invited-error doctrine

in similar situations involving sworn jurors. Those holdings are instructive in the case

before us.

In Jones, Jones was arrested for murdering his great-aunt. While he was in jail

awaiting trial, he confessed to participating in two other murders. During the guilt–

innocence phase of Jones’s trial on his great aunt’s murder, a juror recognized his

11
former supervisor in the courtroom and informed the court. The juror’s former

supervisor was the father of one of the other two people Jones had murdered (although

the juror was unaware of those facts). Upon questioning, the juror indicated that he

believed that he could be impartial but that “he could not help ‘but think a little bit of

empathy [would] leak out in . . . favor’” of his former supervisor if he were to learn that

the supervisor had suffered some type of loss. Jones, 119 S.W.3d at 783–84. Jones moved

for mistrial but alternatively requested that the juror be excused. Id. at 784. On appeal,

Jones complained that the juror should not have been discharged because he was not

disabled. Id. The Court of Criminal Appeals held,

[Jones’s] argument and authorities are all directed toward his
contention that the trial court’s discharge of [the juror] was inappropriate
under Article 36.29. Although [Jones] argued at times before the trial court
that discharge under Article 36.29 would be inappropriate, he nonetheless
proposed discharge as an alternative to mistrial at least three times.
Because [Jones] requested the discharge as an alternative to mistrial, he is
now estopped from complaining about it. [Jones] had the option of
contending at trial that mistrial was the sole legal and appropriate remedy,
and he could have declined to suggest or support any alternatives. By
proposing alternatives he is estopped from complaining on appeal about
the judge having accepted one of them. Parties are often faced with
difficult choices, but facing a tough dilemma does not create a claim or
excuse a party for the option chosen.

Id. (footnotes omitted).

In Lamon, after the jury was sworn and released for the day, a juror returned to

the courtroom and told the judge that he did not believe that he could continue to serve

as a juror. The next day, in a hearing, the juror indicated that he could not consider the

full range of punishment. Lamon’s counsel thanked the juror for his honesty and stated,

12
“I think the Court understands where I am.” Lamon, 463 S.W.3d at 657. The trial court

discharged the juror with no objection, and then announced that it had done so. Id. The

discussion following the announcement indicated that had the juror been excused

during voir dire, there would not have been enough venire members to seat an alternate

juror. Id. The trial then proceeded with only eleven jurors over Lamon’s objection. Id.

On appeal, Lamon argued that the juror was not a disabled juror, and therefore

the trial court erred by discharging him, depriving Lamon of his constitutional right to

a jury of twelve members. Id. Our sister court in Texarkana held that Lamon invited the

error:

Lamon essentially prompted the trial court’s decision. If one looks at the
words Lamon uttered when that issue was raised and examines the posture
in which he found himself, it is more likely that Lamon encouraged the
trial court to discharge the juror rather than his trying to dissuade the
discharge of the juror. After exploring the juror’s bias, counsel for Lamon
stated, “I think the Court understands where I am.” Given the juror’s
comments, which clearly indicated bias against Lamon, counsel’s
statement can fairly be interpreted to mean that he did not want this juror
on this case, thus prompting the trial court to discharge the juror.
Following immediately on the heels of defense counsel’s remark, the trial
court released the juror from service. It is reasonable to conclude that
defense counsel’s comment was an implicit request that the juror be
discharged.

....

Here, because Lamon implicitly requested the juror’s discharge, we
find that he is estopped from complaining about the propriety of the trial
court’s decision on appeal.

Id. at 658–59 (citations omitted).

13
 In Stoker, on the third day of trial, a juror told the trial court that he could no

longer sit on the jury because he was losing too much income and because he had

trouble understanding the testimony due to his inability to understand English. Defense

counsel informed the court that Stoker wanted the juror excluded and wanted to

proceed with eleven jurors, and the parties signed a written document memorializing

the agreement. Stoker, 2011 WL 4414605, at *1. On appeal, Stoker argued that the trial

court erred by excluding the juror because he was not disabled. Id. This court held that

Stoker was estopped from complaining about the juror’s discharge. Id. at *2.

In the case at bar, Appellant argued to the trial court that Gonzalez was

disqualified, not disabled, and Appellant wanted a mistrial. The trial court made clear

that it was not going to grant a mistrial but was going to proceed with the trial with or

without Gonzalez. Given the choice to proceed with eleven jurors or to proceed with

Gonzalez on the jury, Appellant chose to leave Gonzalez on the jury. Like Jones,

Lamon, and Stoker, Appellant is stuck with his choice. See Jones, 119 S.W.3d at 784;

Lamon, 463 S.W.3d at 659; Stoker 2011 WL 4414605, at *2. We hold that Appellant

invited error, if any, regarding Gonzalez’s presence on the jury and is estopped from

complaining of Gonzalez’s presence on the jury on appeal.

2. Forfeited Complaint

a. Stillwell and Vera

Even if Appellant had not invited error, if any, arising from Gonzalez’s remaining

on the jury, Appellant would not be entitled to relief. Although the Texas Constitution

14
requires juries in felony cases to have twelve members, it also allows the remainder of

the jury to render a verdict if up to three jurors die or become disabled. Tex. Const. art.

V, § 13. The provision further allows the Texas Legislature to “change or modify the

rule authorizing less than the whole number of the jury to render a verdict.” Id. The

Legislature has provided two instances (other than a juror’s dying) in which a trial can

proceed with less than twelve jurors: (1) Section 62.201 of the Government Code allows

the parties to agree to try their case with less than twelve jurors, Tex. Gov’t Code Ann.

§ 62.201, and (2) Code of Criminal Procedure Article 36.29(a) allows the trial judge in

a noncapital case to remove a juror who “becomes disabled from sitting” after a felony

trial begins but before the charge is read to the jury, affording the remainder of the jury

the power to render a verdict, Tex. Code Crim. Proc. Ann. art. 36.29(a). Hill v. State,

90 S.W.3d 308, 314 (Tex. Crim. App. 2002). A juror is disabled from sitting when a

“physical illness, mental condition, or emotional state . . . hinders [the juror’s] ability to

perform [the] duties” of a juror or when “any condition . . . inhibits the juror from fully

and fairly performing the functions of a juror.” Ramos v. State, 934 S.W.2d 358, 369 (Tex.

Crim. App. 1996) (citations omitted); see Stillwell, 466 S.W.3d at 911 n.1.

In Stillwell, which controls the merits of this case, this court held that a juror’s

inability to understand English is not a disabling condition. 466 S.W.3d at 912. Instead,

relying on Montoya v. State, 810 S.W.2d 160, 170 (Tex. Crim. App. 1989), this court held

that an inability to understand English is included within the ground for a challenge for

cause alleging that the venire member cannot read or write. Stillwell, 466 S.W.3d at 912;

15
see Tex. Code Crim. Proc. Ann. art. 35.16(a)(11). That ground is not one of the three

grounds that the Texas Legislature has designated an absolute disqualification. See Tex.

Code Crim. Proc. Ann. arts. 35.16(a)(2)–(4), 35.19; Stillwell, 466 S.W.3d at 912. That is,

the inability to understand, read, or write English is not one of the three grounds for a

challenge for cause that can result in the reversal of a conviction even if not raised

during voir dire. See Stillwell, 466 S.W.3d at 912; cf. Tex. Code Crim. Proc Ann. art. 44.46.

Instead, a venire member’s inability to understand, read, or write English and all the

other non-absolute disqualification grounds listed in Article 35.16 for challenges for

cause are forfeited if not raised during voir dire. Tex. Code Crim. Proc. Ann. art. 35.16;

Webb v. State, 232 S.W.3d 109, 112 (Tex. Crim. App. 2007); Stillwell, 466 S.W.3d at 913.

Because the juror in Stillwell was not challenged for cause, Stillwell forfeited the right to

complain about the juror’s presence on the jury. Stillwell, 466 S.W.3d at 913. Thus, when

the juror showed an inability to understand English during the trial, the Stillwell trial

court’s options were (1) to leave the juror on the jury, (2) to remove him and declare a

mistrial, or (3) to remove him, obtain the parties’ consent to continuing the trial with

eleven jurors, and then finish the trial with eleven jurors. Id. The trial court could not

both remove the juror and continue the trial with eleven jurors absent Stillwell’s

consent. Id. Stillwell did not consent to being tried by only eleven jurors, so after the

trial court removed the juror, the trial court was required to grant a mistrial. Id. Because

the trial court denied the mistrial and proceeded with eleven jurors without Stillwell’s

consent, we held that the trial court reversibly erred. Id.

16
 Our sister court in San Antonio relied on Stillwell in Vera v. State, a case in the

same procedural posture as Appellant’s. 496 S.W.3d 293 (Tex. App.—San Antonio

2016, pet. ref’d). In Vera, the parties did not ask the venire members during voir dire

how well they understood English. Id. at 294. After the jury was sworn but before

opening statements, a juror told the trial court, “I have a problem, because I don’t

know—I no speak good English.” Id. The trial court asked the juror if he was a citizen,

and the juror responded that he was a citizen and could “talk like just [he did not]

understand easily everything.” Id. The trial court left the juror on the jury and denied

Vera’s resultant motion for mistrial. Id. at 294–95. On appeal, Vera contended that he

was effectively tried by a jury of eleven persons due to the language deficiency of the

juror and that his motion for mistrial preserved the error. Id. at 295. Our sister court

held that Vera forfeited the right to challenge the juror’s inability to understand English

by not asking “specific enough questions to determine whether anyone on the venire

panel had difficulty . . . understanding English” during voir dire and by not challenging

the juror. Id. at 295–96.

Following Stillwell and Vera, we hold that Appellant forfeited the right to

complain of Gonzalez’s presence on the jury on the basis of his inability to understand

English by not questioning the venire panel about their ability to understand English

and by not raising a timely challenge for cause to Gonzalez during voir dire. See id.;

Stillwell, 466 S.W.3d at 913. The trial court therefore properly did not remove Gonzalez

from the jury.

17
 b. Appellant’s Arguments for Overruling Stillwell

In three main arguments, Appellant contends that Stillwell was wrongly decided,

relying on the concurring opinion in Vera and policy arguments. First, Appellant argues

that Montoya, on which Stillwell relies for the proposition that not understanding English

is included within the statutory disqualification ground regarding an inability to read or

write, is distinguishable on its facts. In making the argument, Appellant relies on the

concurring opinion in Vera. 496 S.W.3d at 298 n.2 (Chapa, J., concurring).

The concurring opinion in Vera states that “the Montoya court held a trial court

does not err by excluding a juror who is unable to comprehend English because the juror

cannot read and write in English and is excludable under article 35.16” and that Montoya

“does not treat English comprehension and English literacy the same for waiver

purposes.” Id. We respectfully disagree with the Vera concurrence’s reading of Montoya.

In Montoya, the trial court sua sponte excused a venire member over Montoya’s

objection because the venire member could not understand English. 810 S.W.2d 169.

Stating that “[t]he record clearly demonstrate[d] that [the venire member] had trouble

understanding English and thus was excludable under Art. 35.16(a)(11),” the Texas

Court of Criminal Appeals held that the trial court erred by sua sponte excusing the

venire member, who was disqualified under Code of Criminal Procedure Article

35.16(a)(11). Id. at 170; see also Goodman v. State, 701 S.W.2d 850, 854–56 (Tex. Crim.

App. 1985) (holding same for venire member whom trial judge sua sponte excused

under Article 35.16(a)(11)—despite evidence of venire member’s ability to read and

18
write in English—because of trial judge’s concern that juror’s understanding of English

was insufficient for a death-penalty case). While forfeiture or waiver was not the issue

in Montoya, our reading of both Montoya and Goodman is that the Texas Court of Criminal

Appeals did equate literacy with comprehension in holding that the venire members

were disqualified under Article 35.16(a)(11) and did hold that the trial court erred by

sua sponte excluding them. Given that (1) Montoya says that an inability to understand

English falls under Article 35.16(a)(11); (2) Article 35.16 provides that parties forfeit

challenges for cause to non-absolute disqualifications; and (3) Webb supports that

proposition, it is no leap to hold (as this court did in Stillwell) that a challenge to a juror

on the basis of an inability to understand English must be made in voir dire or it is

forfeited. Webb, 232 S.W.3d at 112; Stillwell, 466 S.W.3d at 913.

Appellant contends that Montoya is distinguishable because its excluded venire

member was never empaneled, whereas Gonzalez sat on the jury here. We fail to see

how Montoya’s different procedural posture affects the principle that the Stillwell and

Vera jurors, the excluded venire member in Montoya, and Gonzalez in this case all could

have been questioned about their English comprehension and potentially challenged

for cause and excluded during voir dire on the basis of an inability to understand

English.

Second, Appellant contends that the Vera concurrence correctly posits that the

constitutional right to a jury of twelve members fluent in English is a waivable-only

right that a party may not forfeit by inaction. Vera, 496 S.W.3d at 296–97. The

19
concurrence relies on two cases decided more than one hundred years ago, Sullenger v.

State, 182 S.W. 1140 (Tex. Crim. App. 1916), and Lyles v. State, 41 Tex. 172 (1874), to

contend that a juror’s inability to understand English does not fall within Article

35.16(a)(11) and that such a juror’s presence on the jury violates a defendant’s

constitutional rights to a jury trial and to a jury of twelve persons. See Tex. Const. art. I,

§ 15; id. art. V, § 13. In Lyles, the jury contained nine members who did not understand

English despite the defendant’s moving during voir dire that no juror be chosen who

did not understand English and his objecting to the denial of his motion. 41 Tex. at

176. The Texas Supreme Court 3 held that the constitutional right to a jury trial requires

that jurors unable to understand English be excluded from the panel. Id. at 177. In

Sullenger, the defendant objected to a venire member who could read, write, and

understand only a little English, but the trial court overruled the objections and the

venire member was chosen for the jury. 182 S.W. at 1142. The Court of Criminal

Appeals summarily reversed, relying in part on Lyles. Id.

Timely objections in those cases (absent from the case before us) preserved error,

but the Vera concurrence contends that the right to a jury composed of twelve people

fluent in English is a waivable-only right. 496 S.W.3d at 297. The concurrence relies on

3
Before the Texas Constitution of 1876 created the Court of Appeals with
exclusive criminal jurisdiction, the Supreme Court of Texas had both civil and criminal
jurisdiction. Tex. Const. art. V, § 3, interp. commentary; see also Hon. James T. “Jim”
Worthen, The Organizational & Structural Development of Intermediate Appellate Courts in
Texas, 1892–2003, 46 S. Tex. L. Rev. 33, 34 (2004).

20
the statutory requirement that a defendant waive the right to a jury “in writing in open

court,” the statutory provision that “the parties may agree” to a jury of less than twelve

members, and intermediate appellate courts’ requiring an express waiver to juries made

up of fewer than twelve people. Id. (citing Tex. Code Crim. Proc. Ann. art. 1.13; Tex.

Gov’t Code Ann. § 62.201; Bates v. State, 843 S.W.2d 101, 104 (Tex. App.—Texarkana

1992, no pet.); Trinidad v. State, 275 S.W.3d 52, 58 (Tex. App.—San Antonio 2008), rev’d

on other grounds, 312 S.W.3d 23, 28 (Tex. Crim. App. 2010)).

Even if the Vera concurrence is correct that a defendant must affirmatively waive

a jury of twelve and cannot otherwise forfeit that right,4 that proposition does not help

Appellant. The concurrence concedes that a defendant expressly waives the

constitutional issue by “affirmatively consenting” to “proceeding with a juror” with an

alleged inability to “understand English or to proceeding with fewer than twelve jurors”

with the State’s agreement. 496 S.W.3d at 299. Here, the State wanted to proceed with

the trial whether Gonzalez remained on the jury or the trial court removed him.

Appellant wanted a mistrial, but he affirmatively consented to Gonzalez’s remaining on

4
In Article Five, Section Thirteen, the Texas Constitution provides that felony
juries shall be composed of twelve persons unless up to three of them die or become
disabled. Tex. Const. art. V, § 13. In Trinidad, the Texas Court of Criminal Appeals
bypassed the issue of whether that constitutional provision is a waiver-only provision.
312 S.W.3d at 28. A waiver-only provision is one that must be expressly waived in the
trial court before a party may lose it; it cannot be forfeited or lost by procedural default.
Marin, 851 S.W.2d at 279. This issue is currently pending before that court in Becera v.
State, No. PD-0804-19 (Tex. Crim. App. submitted Apr. 8, 2020).

21
the jury instead of proceeding to trial without him. Thus, even the Vera concurrence

would conclude that Appellant expressly waived his constitutional issue regarding

Gonzalez’s remaining on the jury.

Further, the record before us, like the record in Vera, does not clearly

demonstrate that Gonzalez did not have sufficient understanding of English to serve

as a juror. See id. The trial court received conflicting evidence about Gonzalez’s English

fluency. Even though Gonzalez had to use a Google dictionary to translate words he

did not understand—rehabilitation, deterrence, punishment, racial prejudice, and unlawful—he

filled out his juror questionnaire in English himself. Even though Gonzalez stated that

he understood only part of the concept of reasonable doubt that was discussed in voir dire,

the record does not explain his level of understanding. And even though Gonzalez

stated that he did not understand some of the first day’s testimony, he could not point

to any examples when pressed by the trial judge. Gonzalez did not tell the bailiff that

he had a problem understanding English until he realized that the trial was going to last

more than one day, he conversed with the trial judge and both attorneys during the

hearing without indicating that he did not understand what they were saying, and he

affirmed that the assessed punishments were his verdicts when polled. Consequently,

even if Appellant’s constitutional right to a jury of twelve members included a waivable-

only right to a jury of twelve members who understood English, we would hold that

the trial court did not abuse its discretion by retaining Gonzalez on the jury and

22
therefore did not violate Appellant’s constitutional right to a jury of twelve persons. See

id. We would therefore have no need to overturn Stillwell on these facts.

Third, Appellant raises constitutionally based policy arguments to support his

contention that cases like Stillwell that interpret Code of Criminal Procedure Article

35.16(a)(11) to include an English fluency requirement are constitutionally suspect

because they infringe on the equal protection and due process rights of non-English

speakers by allowing their exclusion from juries. Without conceding his point (which

was not preserved in the trial court) we note that interpreting the Texas Constitution

and Code of Criminal Procedure Article 36.29 to allow trial courts to remove such

jurors as disabled, which is the outcome Appellant seeks, is no less constitutionally

suspect. We decline to overturn Stillwell or to ignore the plain language of Montoya; we

leave it to the Texas Legislature or the Texas Court of Criminal Appeals to effect any

change in the existing law.

3. Resolution of First Issue

Appellant is estopped from complaining about any error, waivable-only or not,

regarding Gonzalez’s sitting on the jury because he affirmatively and expressly chose to

leave Gonzalez on the jury. But even were we to review the merits of Appellant’s

argument, we would hold under Stillwell and Vera that he forfeited any right to complain

about Gonzalez’s presence on the jury by not questioning him about his English fluency

in voir dire and challenging him thereon.

23
 Appellant arguments do not convince us to disavow Stillwell. Even if the law were

as posited by the Vera concurring opinion, Appellant would be unable to show that his

constitutional right to a jury of twelve persons was violated or that the trial court erred

by retaining Gonzalez on the jury, and we reject Appellant’s argument that Stillwell

suffers from constitutional infirmities when the legal interpretation Appellant advances

suffers from those same alleged infirmities. We overrule Appellant’s first issue.

B. Ineffective Assistance of Counsel

In his second issue, Appellant contends that defense counsel rendered ineffective

assistance by failing to diligently inquire in voir dire whether all venire members were

fluent in English, resulting in an empaneled juror who was not fluent in English. The

State responds that the record is insufficient for determining ineffective assistance

because the motion for new trial did not raise the issue and there was no hearing on the

motion. Alternatively, the State contends that the record does not satisfy either

Strickland prong.

The Sixth Amendment guarantees a criminal defendant the effective assistance

of counsel. Ex parte Scott, 541 S.W.3d 104, 114 (Tex. Crim. App. 2017); see U.S. Const.

amend. VI. To establish ineffective assistance, an appellant must prove by a

preponderance of the evidence that his counsel’s representation was deficient and that

the deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.

Ct. 2052, 2064 (1984); Nava v. State, 415 S.W.3d 289, 307 (Tex. Crim. App. 2013);

Hernandez v. State, 988 S.W.2d 770, 770 (Tex. Crim. App. 1999). The record must

24
affirmatively demonstrate that the claim has merit. Thompson v. State, 9 S.W.3d 808,

813 (Tex. Crim. App. 1999).

In evaluating counsel’s effectiveness under the deficient-performance prong, we

review the totality of the representation and the particular circumstances of the case to

determine whether counsel provided reasonable assistance under all the circumstances

and prevailing professional norms at the time of the alleged error. See Strickland, 466 U.S.

at 688–89, 104 S. Ct. at 2065; Nava, 415 S.W.3d at 307; Thompson, 9 S.W.3d at 813–14.

Our review of counsel’s representation is highly deferential, and we indulge a strong

presumption that counsel’s conduct was not deficient. Nava, 415 S.W.3d at 307–08.

An appellate court may not infer ineffective assistance simply from an unclear

record or a record that does not show why counsel failed to do something. Menefield v.

State, 363 S.W.3d 591, 593 (Tex. Crim. App. 2012); Mata v. State, 226 S.W.3d 425,

432 (Tex. Crim. App. 2007). Trial counsel “should ordinarily be afforded an

opportunity to explain his actions before being denounced as ineffective.” Menefield,

363 S.W.3d at 593. If trial counsel did not have that opportunity, we should not

conclude that counsel performed deficiently unless the challenged conduct was “so

outrageous that no competent attorney would have engaged in it.” Nava, 415 S.W.3d at

308. Direct appeal is usually inadequate for raising an ineffective-assistance-of-counsel

claim because the record generally does not show counsel’s reasons for any alleged

deficient performance. See Menefield, 363 S.W.3d at 592–93; Thompson, 9 S.W.3d at 813–

14.

25
 Strickland’s prejudice prong requires a showing that counsel’s errors were so

serious that they deprived the defendant of a fair trial—that is, a trial with a reliable

result. 466 U.S. at 687, 104 S. Ct. at 2064.

Attorneys have a duty to diligently voir dire venire members. “It is incumbent

upon counsel to specifically ask questions which will determine whether they have a

right to challenge the venire[]member.” Webb, 232 S.W.3d at 113. Attorneys have a

“duty to determine [the] capability or fitness of [prospective] jurors during voir dire.”

Stillwell, 466 S.W.3d at 913. The record before us does not reveal why defense counsel

did not diligently question the venire members about their English fluency and, if the

evidence warranted, thereafter challenge Gonzalez for cause. However, as established

in our discussion of Appellant’s first issue, the record is also inadequate to show that

Gonzalez was not sufficiently fluent in English to serve on the jury. Appellant chose

not to raise ineffective assistance in his motion for new trial and chose not to have a

hearing on the issue in the trial court. We will not infer that defense counsel’s

performance was defective from an inadequate record. See Menefield, 363 S.W.3d at 593;

Nava, 415 S.W.3d at 308.

We will also not infer that defense counsel’s failure to voir dire on the jury’s

English fluency and failure to challenge Gonzalez for cause deprived Appellant of a fair

trial. Appellant concedes that any error likely would have prejudiced only the sentencing

phase because the evidence of guilt was overwhelming. He argues that Gonzalez would

not have understood sudden-passion evidence or the punishment jury charge, which

26
charged the jury on the hate-crime, sudden-passion, and sentencing issues. However,

even if defense counsel’s performance had been deficient, the record does not support

Appellant’s conjecture about the effects of defense counsel’s performance on his

sentencing. Appellant chose not to develop the record to support his ineffective

assistance claim. Absent evidence in the record, Appellant cannot satisfy his burden to

show that defense counsel’s performance was deficient or, even if it was, that it deprived

Appellant of a fair trial. We overrule Appellant’s second issue.

IV. Conclusion

Having overruled Appellant’s two issues, we affirm the trial court’s judgments.

/s/ Mike Wallach
Mike Wallach
Justice

Do Not Publish
Tex. R. App. P. 47.2(b)

Delivered: September 24, 2020

27