In The
Court of Appeals
Ninth District of Texas at Beaumont
____________________
NO. 09-16-00350-CR
____________________
JUSTIN LEVI BURNS, Appellant
V.
THE STATE OF TEXAS, Appellee
__________________________________________________________________
On Appeal from the 9th District Court
Montgomery County, Texas
Trial Cause No. 13-10-11786-CR
__________________________________________________________________
MEMORANDUM OPINION
Appellant Justin Levi Burns appeals his conviction for continuous sexual
abuse of a child. In six issues on appeal, Burns complains about the admission of
extraneous offense testimony, the denial of his motion for mistrial, and the denial of
a fair trial due to defense counsel’s allegedly deficient performance that prejudiced
his defense. We affirm the trial court’s judgment.
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BACKGROUND
A grand jury indicted Burns for continuous sexual abuse of A.M., a
child. See Tex. Penal Code Ann. § 21.02(b) (West Supp. 2016).1 A.M. was nine
years old at the time of trial. Several witnesses testified that A.M. had autism. A.M.
testified that Burns is her uncle. A.M. testified that when she was at Burns’s house,
Burns forced her to go into his room and Burns “put his private in my bottom and
he licked my private[.]” According to A.M., the abuse occurred more than once, but
A.M. did not know how many times. A.M. explained that she finally told her mother
because she wanted the abuse to stop.
A jury found Burns guilty of continuous sexual abuse of a child and assessed
punishment at life in prison. The trial court sentenced Burns to life in prison.
Although Burns failed to timely appeal, the record shows that Burns filed an
application for a writ of habeas corpus alleging that his trial counsel was ineffective
for failing to timely file a notice of appeal, and the Court of Criminal Appeals
ordered that Burns be allowed to file an out-of-time appeal.
1
We cite to the current version of the statute because the subsequent
amendment does not affect the outcome of this appeal.
2
ANALYSIS
In issues one and two, Burns complains that the trial court erred by overruling
his objections to the extraneous offense testimony of the State’s witness, Investigator
Joey Ashton, who testified that when he arrested Burns in Colorado for the sexual
abuse of A.M., Burns provided a false name and date of birth. Burns argues that
Ashton’s testimony was irrelevant because the extraneous conduct was not similar
to the charged conduct of continuous sexual abuse of a child. See Tex. R. Evid. 404.
Burns further argues the probative value of Ashton’s testimony did not outweigh its
unfairly prejudicial effect. See Tex. R. Evid. 403.
We review the trial court’s ruling to admit extraneous offense evidence under
an abuse of discretion standard. De La Paz v. State, 279 S.W.3d 336, 343 (Tex. Crim.
App. 2009). The trial court abuses its discretion when its decision lies outside the
zone of reasonable disagreement. Martinez v. State, 327 S.W.3d 727, 736 (Tex.
Crim. App. 2010). We will not disturb a trial court’s evidentiary ruling if it is correct
on any applicable theory of law, even if the trial court gave the wrong reason for its
ruling. De La Paz, 279 S.W.3d at 344; Romero v. State, 800 S.W.2d 539, 543 (Tex.
Crim. App. 1990).
“Evidence of a crime, wrong, or other act is not admissible to prove a person’s
character in order to show that on a particular occasion the person acted in
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accordance with the character.” Tex. R. Evid. 404(b). “An exception to this rule of
inadmissibility provides that evidence of other crimes, wrongs, or acts may be
admissible for another purpose, for example, to prove ‘motive, opportunity, intent,
preparation, plan, knowledge, identity or absence of mistake or accident.’” Burks v.
State, 227 S.W.3d 138, 147 (Tex. App.—Houston [1st Dist.] 2006, pet ref’d); see
also Powell v. State, 63 S.W.3d 435, 438 (Tex. Crim. App. 2001). “Extraneous
offense evidence of ‘other crimes, wrongs, or acts’ may have noncharacter-
conformity relevance when it tends to make the existence of a fact that is of
consequence to the determination of the action more or less probable than without
the extraneous offense evidence.” Burks, 227 S.W.3d at 148.
Extraneous offense evidence may be admissible to show consciousness of
guilt. See Ransom v. State, 920 S.W.2d 288, 299 (Tex. Crim. App. 1994). Evidence
of flight is admissible evidence from which an inference of guilt may be drawn, and
it is also relevant to show efforts made to locate or apprehend a defendant, as well
as to show the circumstances surrounding his arrest. Bigby v. State, 892 S.W.2d 864,
883 (Tex. Crim. App. 1994); Cantrell v. State, 731 S.W.2d 84, 92 (Tex. Crim. App.
1987); Foster v. State, 779 S.W.2d 845, 859 (Tex. Crim. App. 1989). Evidence of
flight is admissible even if it shows the commission of other crimes. Cantrell, 731
S.W.2d at 92. To have evidence of flight excluded, the defendant must affirmatively
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show that the flight was directly connected to some other transaction and not
connected with the offense at trial. See Bigby, 892 S.W.2d at 883.
The record shows that Burns objected to the extraneous offense testimony
based on relevance, and that the trial court overruled Burns’s relevance objection.
The record further shows that defense counsel objected to testimony that Burns gave
Ashton an incorrect name and date of birth, stating that it is the act of fleeing that is
evidence of guilt, not giving the wrong name or date of birth. The trial court
overruled defense counsel’s objection. Defense counsel then reiterated his objection,
stating that the issues properly before the jury do not concern the incident in
Colorado. The trial court allowed the extraneous offense testimony, finding that
flight is an indication of guilt.
We conclude that evidence of Burns’s flight and giving of the wrong name
and date of birth was relevant and admissible to show, without
violating Rule 404(b), that Burns was conscious of his guilt. See Bigby, 892 S.W.2d
at 883; Cantrell, 731 S.W.2d at 92; Foster, 779 S.W.2d at 859. The evidence was
also admissible to show the circumstances surrounding Burns’s arrest. See Cantrell,
731 S.W.2d at 93. Burns presented no evidence showing that the flight was directly
connected to some other transaction and not connected with the offense at
trial. See Bigby, 892 S.W.2d at 883.
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Burns also argues that Ashton’s testimony prejudiced the outcome of his trial.
See Tex. R. Evid. 403. To preserve a complaint regarding the admission of evidence
for appellate review, a defendant must lodge a timely, specific objection, and that
objection must comport with the defendant’s complaint on appeal. See Tex. R. App.
P. 33.1(a); Clark v. State, 365 S.W.3d 333, 339 (Tex. Crim. App. 2012). The record
shows that Burns did not object to the extraneous offense testimony based on Rule
403. Because Burns’s Rule 403 complaint fails to comport with the objections he
made at trial, we conclude that Burns has failed to preserve this argument for our
review. See Tex. R. App. P. 33.1. We overrule issues one and two.
In issue three, Burns contends that the trial court erred in denying his motion
for mistrial after it was revealed that J.S., who was seated in the gallery, had been
signaling to A.M. during A.M.’s testimony regarding the alleged acts of sexual
contact. Burns complains that the trial court failed to eject J.S. from the courtroom
after J.S.’s conduct was detected, and also failed to inquire as to J.S.’s connection to
the parties. According to Burns, J.S.’s coaching of A.M. denied him a fair trial, and
the only way of curing the error was by the trial court granting a new trial.
The record shows that during A.M.’s testimony, defense counsel advised the
trial court during a bench conference that he had observed a lady in the audience
coaching A.M. The prosecutor stated the she did not think that A.M. had taken her
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eyes off the prosecutor. Neither the prosecutor nor defense counsel knew who the
lady was. The record shows that when the trial court questioned the lady outside the
presence of the jury, the lady identified herself as J.S., and J.S. stated that she was
not nodding towards A.M. J.S. explained that she was “sitting up straight to see over
the monitor to see [A.M.]”According to J.S., she was moving her head because she
was having trouble seeing A.M. At that point, defense counsel asked for a mistrial.
The trial court denied Burns’s request for a mistrial and instructed J.S. to “make sure
[she was] not nodding or anything toward [A.M.]”
We review a trial court’s denial of a motion for mistrial under an abuse of
discretion standard. Ocon v. State, 284 S.W.3d 880, 884 (Tex. Crim. App. 2009).
We view “the evidence in the light most favorable to the trial court’s ruling,
considering only those arguments before the court at the time of the ruling.” Id. We
must uphold the trial court’s ruling if it was within the zone of reasonable
disagreement. Id. Mistrial is an appropriate remedy only when the error is highly
prejudicial and incurable. Id. (citing Hawkins v. State, 135 S.W.3d 72, 77 (Tex.
Crim. App. 2004)).
Under the circumstances here, the trial court questioned J.S. about whether
she had been coaching A.M., and J.S. denied that she had nodded towards A.M. and
claimed that she was merely moving her head so that she could see A.M. The record
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contains no evidence that J.S. was coaching A.M. We conclude that the trial court’s
ruling was within the zone of reasonable disagreement and, therefore, did not
constitute an abuse of discretion. See Ocon, 284 S.W.3d at 884. Accordingly, we
overrule issue three.
In issues four, five, and six, Burns complains that defense counsel’s deficient
performance resulted in an unfair trial. To prevail on a claim
of ineffective assistance of counsel, an appellant must satisfy a two-pronged test:
First, the defendant must show that counsel’s performance was
deficient. This requires showing that counsel made errors so serious that
counsel was not functioning as the “counsel” guaranteed the defendant
by the Sixth Amendment. Second, the defendant must show that the
deficient performance prejudiced the defense. This requires showing
that counsel’s errors were so serious as to deprive the defendant of a
fair trial, a trial whose result is reliable.
Strickland v. Washington, 466 U.S. 668, 687 (1984); see also Hernandez v. State,
726 S.W.2d 53, 56-57 (Tex. Crim. App. 1986). An appellant must demonstrate a
reasonable probability that but for his counsel’s errors, the outcome would have been
different. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). “Appellate
review of defense counsel’s representation is highly deferential and presumes that
counsel’s actions fell within the wide range of reasonable and professional
assistance.” Id.
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Burns must prove that there was no professional reason for specific acts or
omissions of his counsel. See id. at 836. In addition, “[a]ny allegation of
ineffectiveness must be firmly founded in the record, and the record must
affirmatively demonstrate the alleged ineffectiveness.” Thompson v. State, 9 S.W.3d
808, 813 (Tex. Crim. App. 1999). The bare record on direct appeal is usually
insufficient to demonstrate that “counsel’s representation was so deficient and so
lacking in tactical or strategic decisionmaking as to overcome the presumption that
counsel’s conduct was reasonable and professional.” Bone, 77 S.W.3d at
833 (citation omitted). “A claim of ineffective assistance of counsel based on
counsel’s failure to call witnesses fails in the absence of a showing that such
witnesses were available to testify and that the defendant would have benefitted
from their testimony.” Wade v. State, 164 S.W.3d 788, 796 (Tex. App.—Houston
[14th Dist.] 2005, no pet.) (citing Wilkerson v. State, 726 S.W.2d 542, 551 (Tex.
Crim. App. 1986)); see also Garrett v. State, 998 S.W.2d 307, 314 (Tex. App.—
Texarkana 1999, pet. ref’d).
In issues four and five, Burns argues that defense counsel was deficient by
failing to secure the presence of two witnesses whose testimony would have gone to
the credibility of another witness. According to Burns, despite the two witnesses
being present at some point during the trial, defense counsel failed to have the
9
witnesses sworn in and ordered to appear to testify. Burns complains that defense
counsel’s actions failed to comply with the Sixth Amendment’s requirement to
provide an adversarial testing process at trial.
Burns filed a motion for new trial in which he raised numerous issues,
including ineffective assistance of counsel. However, the record does not reflect that
the trial court conducted a hearing on Burns’s motion for new trial. Any allegation
that trial counsel was ineffective must be firmly grounded in the record before we
may find that counsel provided ineffective assistance. See Thompson, 9 S.W.3d at
813. Even assuming without deciding that defense counsel was deficient by failing
to secure the presence of the two witnesses, the record is silent as to the content of
either witness’s testimony. In the absence of evidence establishing that the testimony
of the witnesses would have benefited Burns’s defense, Burns has failed to satisfy
the second prong. See Wilkerson, 726 S.W.2d at 551; Garrett, 998 S.W.2d at 314.
Accordingly, Burns has failed to prove that he was denied effective assistance of
counsel due to his counsel’s failure to call witnesses. See Bone, 77 S.W.3d at 833.
We overrule issues four and five.
In issue six, Burns argues that defense counsel was deficient by failing to insist
upon the admission of Brady material that challenged the credibility of the
complaining witness’s mother, M.P. According to Burns, although the record shows
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that the trial court asked that sensitive information be redacted from the State’s file
and that the trial court offered to remove the sensitive information so the documents
could be admitted at trial, defense counsel failed to request a delay and insist upon
the introduction of the Brady material. According to Burns, the exclusion of the
evidence regarding M.P.’s record of recanted allegations in other cases left the jury
with an incomplete picture of M.P.’s reliability.
During trial, defense counsel made an offer of proof regarding evidence that
allegedly included Brady information concerning M.P.’s credibility. Defense
counsel noted that he had originally agreed to take out records that the State wanted
to remove, but now was requesting that the trial court admit any removed portions.
At that point, the trial court advised defense counsel that it had not made any ruling
on the records because the records had not been offered, and the trial court advised
defense counsel that it would consider the evidence when it was offered. The trial
court instructed defense counsel that it was “still waiting for the formal proffer[,]”
and stated that “[i]t’s up to you-all to get me an exhibit that is admissible and whole.”
The record shows that defense counsel rested without offering the evidence
containing the alleged Brady information, so the trial court never ruled on its
admissibility.
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On this record, we cannot conclude that defense counsel’s failure to offer the
evidence containing the alleged Brady information was deficient or that the outcome
of Burns’s trial would have been different had the evidence been admitted. See id.
Accordingly, Burns cannot defeat the presumption that trial counsel’s assistance was
reasonable and professional. See id.; see also Thompson, 9 S.W.3d at 814. We
overrule issue six. Having overruled all of Burns’s issues, we affirm the trial court’s
judgment.
AFFIRMED.
______________________________
STEVE McKEITHEN
Chief Justice
Submitted on November 3, 2017
Opinion Delivered December 6, 2017
Do Not Publish
Before McKeithen, C.J., Horton and Johnson, JJ.
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