Unreported / Non-Citable
Background
Joshua Griffin Borders was convicted of indecency with a child by sexual contact, a second-degree felony, and sentenced to fourteen years of confinement. The victim, B.G., was eight years old when the offense occurred on May 13, 2022. Appellant was her stepfather. The offense consisted of Appellant touching B.G.’s genitals with intent to arouse or gratify his sexual desire while she was in bed with him and her younger brother.
B.G. disclosed the offense to her mother immediately upon her return from work. At trial, when B.G. was eleven, she testified consistently with her prior disclosures to her mother, during a sexual-assault examination, and during a forensic interview. Appellant cross-examined B.G. extensively about a discrepancy regarding whether she had actually fallen asleep or merely pretended to be asleep during the incident.
During the State’s rebuttal closing argument, the prosecutor made statements emphasizing the importance of believing children who report sexual abuse, characterizing skepticism of B.G.’s account as contrary to the message given to children about disclosure. Appellant’s counsel objected, the trial court sustained the objection and instructed the jury to disregard, and counsel moved for mistrial, which was denied.
The Court’s Holding
The Texas Court of Appeals affirmed the conviction and sentence. On the motion for mistrial issue, the court held that even assuming the prosecutor’s rebuttal argument was an impermissible plea for law enforcement, the trial court did not abuse its discretion in denying mistrial. The comment was brief and isolated; the trial court gave an immediate curative instruction, presumed to be followed; and the evidence of guilt was substantial, with B.G. providing a consistent account of the touching across four separate contexts.
On the ineffective assistance of counsel claim, the court held that Appellant failed to establish either deficient performance or prejudice under Strickland v. Washington. Regarding counsel’s failure to present a psychosexual evaluation finding low risk to re-offend, the court found sound strategic reasons for the omission because the report also contained severe-range impulsiveness, antisocial behaviors, and identified sexual interest in adolescent females. The court noted that “not being a pedophile” is not an admissible character trait under Texas evidence rules. As to counsel’s failure to call B.G.’s mother during guilt phase, the court found she would have been a “double-edged sword” witness whose testimony about prior suspicious incidents could have harmed the defense. On expert testimony objections, the court found no reasonable probability of a different outcome because the expert appropriately qualified her statements and the jury was not exposed to prejudicial substantive testimony.
Key Takeaways
- A trial court’s denial of a mistrial motion will be upheld when it falls within the zone of reasonable disagreement, and a prompt instruction to disregard ordinarily cures improper argument when evidence of guilt is substantial.
- Counsel’s strategic decisions not to present evidence or call witnesses may be reasonable, particularly when evidence carries significant risks or when the witness could be effectively used by the prosecution on cross-examination.
- Evidence that a defendant does not possess a criminal propensity (e.g., not being a pedophile) is not admissible as character evidence under Texas law.
Why It Matters
This decision reinforces the high appellate bar for ineffective assistance claims when the record does not explain counsel’s strategic choices. Trial courts have broad discretion in managing trial proceedings, including closing argument comments. When underlying evidence is strong, curative instructions are presumed effective, and courts will not second-guess trial strategy without clear deficient performance and resulting prejudice.
The decision clarifies that character trait evidence under Texas law must address an actual character trait relevant to the offense, not merely the absence of a negative trait. For sexual abuse cases, defense counsel must carefully weigh risks and benefits of presenting psychological evidence, particularly when findings are mixed and could prove more damaging than helpful.