                    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).
                                                      3
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




                                                5
