Parnell v. State

Decision Date24 September 2020
Docket NumberNo. 02-19-00070-CR,02-19-00070-CR
PartiesKEVIN ASHLEY PARNELL, Appellant v. THE STATE OF TEXAS
CourtTexas Court of Appeals

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'sstepdaughter 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 wasblack, 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.
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 understandbias 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;• 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 forhis removal. After a short break,...

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