Junell v. State

607 S.W.3d 410

Austin Blake JUNELL, Appellant

v.The STATE of Texas, Appellee

No. 06-19-00146-CR

Court of Appeals of Texas, Texarkana.

Date Submitted: July 1, 2020

Date Decided: July 2, 2020

Christopher D. Tinsley, Attorney at Law, Athens, TX, for Appellant.

James Pink Dickens, Assistant District Attorney, Athens, TX, Mark W. Hall, Chandler, for Appellee.

Austin Blake Junell, pro se.

Before Morriss, C.J., Burgess and Stevens, JJ.

OPINION

Opinion by Justice Burgess

Following a jury trial, Austin Blake Junell was convicted of two counts of intoxication manslaughter resulting from a traffic accident in Henderson County.¹ Junell was sentenced to fifteen years' incarceration and was fined $10,000.00 on each count, with the sentences to run consecutively. On appeal, Junell complains that (1) his trial counsel was ineffective in failing to object to testimony regarding his alleged affiliation with the Aryan Brotherhood during the punishment hearing and (2) the trial court erred in imposing attorney fees as reflected in the judgment on count one. Although we find that the judgment on count one should be modified to delete the assessment of attorney fees, we further find that Junell has failed to establish his ineffective assistance of counsel claim. We, therefore, affirm the judgment, as modified.

I. Ineffective Assistance of Counsel

A. Standard of Review

"Our case law states that it is the defendant's burden to prove by a preponderance of the evidence that trial counsel's performance was deficient or not ‘reasonably effective’ by showing that counsel's performance fell below an objective standard of reasonableness based on prevailing professional norms." Robertson v. State , 187 S.W.3d 475, 483 (Tex. Crim. App. 2006) (citing Rylander v. State , 101 S.W.3d 107, 109–10) (Tex. Crim. App. 2003). Thus, to prevail on a claim of ineffective assistance of counsel, the defendant must satisfy the two-pronged test set forth in Strickland v. Washington. 466 U.S. 668, 687–88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ; see also Ex parte Imoudu , 284 S.W.3d 866, 869 (Tex. Crim. App. 2009) (orig. proceeding). The first prong requires a showing that counsel's performance fell below an objective standard of reasonableness. Strickland , 466 U.S. at 688, 104 S.Ct. 2052. This requirement can be difficult to meet since there is "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689, 104 S.Ct. 2052. "If this Court ‘can conceive potential reasonable trial strategies that counsel could have been pursuing,’ then we cannot conclude that counsel's performance was deficient."

Turner v. State , 528 S.W.3d 569, 577 (Tex. App.—Texarkana 2016, no pet.) (quoting Andrews v. State , 159 S.W.3d 98, 103 (Tex. Crim. App. 2005) ).

The second Strickland prong, sometimes called "the prejudice prong," requires a showing that, but for counsel's unprofessional error, there is a reasonable probability that the result of the proceeding would have been different. Strickland , 466 U.S. at 694, 104 S.Ct. 2052. "A reasonable probability" is defined as "a probability sufficient to undermine confidence in the outcome." Id. Thus, to establish prejudice,

an applicant must show "that counsel's errors were so serious as to deprive defendant of a fair trial, a trial whose result was reliable." [ Strickland , 466 U.S.] at 687, 104 S.Ct. 2052. It is not sufficient for Applicant to show "that the errors had some conceivable effect on the outcome of the proceeding." Id. at 693, 104 S.Ct. 2052. Rather, [he] must show that "there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt." Id. at 695, 104 S.Ct. 2052.

Ex parte Martinez , 330 S.W.3d 891, 901 (Tex. Crim. App. 2011) (orig. proceeding).

A failure to make a showing under either prong defeats a claim for ineffective assistance. Rylander v. State , 101 S.W.3d 107, 110–11 (Tex. Crim. App. 2003). "Thus, we need not examine both Strickland prongs if one cannot be met." Turner , 528 S.W.3d at 577 (citing Strickland , 466 U.S. at 697, 104 S.Ct. 2052 ).

B. Analysis

Junell, who was twenty years old at the time of the accident in which he drove through a stop sign and collided with an eighteen-wheeler, had a blood alcohol content of 0.124 when he arrived at the hospital after the accident. Both passengers in the back seat of Junell's vehicle were killed in the crash, and the front-seat passenger was injured, as was Junell.

Junell's ineffective-assistance claim stems from the punishment trial at which Josh Rickman, an investigator for the Henderson County District Attorney's Office, testified. Rickman became a certified police officer in 2007 and previously worked for the Henderson County Sheriff's Office. While at the Henderson County Sheriff's Office, Rickman spent several years on patrol as a deputy sheriff until he was promoted to the Criminal Investigation Division (CID) where he investigated numerous crimes.

Rickman testified that he was familiar with the gangs that operate in the Henderson County area. He became familiar with the Aryan Brotherhood when he worked in the jail and kept track of gang members to ensure that they were confirmed when they arrived at the Texas Department of Corrections. According to Rickman, people who are jailed "click up ... with a jailhouse gang." Rickman then testified that lightning bolts are a sign of the Aryan Brotherhood or the Aryan Circle. Rickman further testified on questioning by the State:

Q. .... So if someone comes in with gang tattoos, because of that need to know what affiliation they're with, are they documented by photographs and in writing?

A. Yes, ma'am.

Q. And if someone affixes gang tattoos to themselves while they're in jail, has that been also noted in the -- in their records?

A. It should be.

Q. All right. And so you've sat behind Austin, and you've been able to see the gang -- the lightening [sic] bolts on his neck; is that right?

A. Yes, ma'am, I have.

Q. In your opinion, what are those affiliation of?

A. I believe he's affiliated with the Aryan Brotherhood or a clan of Peckerwood.

On cross-examination, Hickman testified that he did not know for a fact that Junell was a gang member.

Junell contends that his trial counsel was ineffective because he failed to object to Rickman's lack of expert qualification and because he failed to object to questions by the State regarding alleged gang affiliations under Rule 403 of the Texas Rules of Evidence.

1. Failure to Object to Rickman's Qualifications Was Not Deficient Performance

Before it admits evidence under Rule 702,² the trial court must be satisfied that "(1) the witness qualifies as an expert by reason of his knowledge, skill, experience, training, or education; (2) the subject matter of the testimony is an appropriate one for expert testimony; and (3) admitting the expert testimony will actually assist the fact-finder in deciding the case." Rodgers v. State , 205 S.W.3d 525, 527 (Tex. Crim. App. 2006). "If the expert evidence is close to the jury's common understanding, the witness's qualifications are less important than when the evidence is well outside the jury's own experience." Id. at 528. Moreover, "[t]he behavior of gangs and gang members is a generally accepted area of expert testimony which involves the gaining of specialized knowledge through experience or personal research." Washington v. State , 485 S.W.3d 633, 638 (Tex. App.—Houston [1st Dist.] 2016, no pet.) ; see also Morris v. State , 361 S.W.3d 649, 656 (Tex. Crim. App. 2011) (noting that behavior of gangs constitutes generally accepted area of expert testimony).

Expert qualification requires that the witness have "a sufficient background in a particular field and a trial judge must then determine whether that background goes to the matter on which the witness is to give an opinion." Davis v. State , 329 S.W.3d 798, 813 (Tex. Crim. App. 2010) (citing Vela v. State , 209 S.W.3d 128, 131 (Tex. Crim. App. 2006) ). "The focus is on the fit between the subject matter at issue and the expert's familiarity with it." Id. "Because the spectrum of education, skill, and training is so wide, a trial court has great discretion in determining whether a witness possesses appropriate qualifications as an expert on a specific topic in a particular case." Id.

Rickman's testimony that he became familiar with the Aryan Brotherhood when he worked in the jail, where he was required to keep track of gang members by documenting gang tattoos, and that he was a long-time law enforcement officer with CID experience is some evidence that he is familiar with the subject matter. Counsel's decision not to object to Rickman's qualifications is a reasonable trial strategy given the great discretion imbued in the trial court to determine expert qualifications. See id. We cannot conclude that the failure to do so was deficient performance. See Turner , 528 S.W.3d at 577.

2. Failure to Object to Rickman's Testimony and Aryan Brotherhood Questioning under Rule 403 Did Not Prejudice Junell

Junell contends that counsel was ineffective in failing to object to Rickman's testimony and related questioning regarding Junell's alleged membership³ in the Aryan Brotherhood under Rule 403 of the Texas Rules of Evidence. See TEX. R. EVID . 403.⁴

"[G]ang-related evidence tends to be irrelevant and prejudicial if not accompanied by testimony that puts the evidence into context." Martinez , 330 S.W.3d at 902 (citing Dawson v. Delaware , 503 U.S. 159, 112 S.Ct. 1093, 117 L.Ed.2d 309 (1992) ).

In Dawson , the Supreme Court held that the First Amendment prohibited evidence of the defendant's membership in the Aryan Brotherhood during the penalty hearing because merely belonging to a group proved nothing more than the defendant's abstract beliefs. [ Dawson v. Delaware , 503 U.S. 159,] 166, 112 S. Ct. 1093 [117 L.Ed.2d 309 (1992) ]. Had the prosecution, as it originally indicated it would, called an expert to

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